01/12/2008

Before a Missouri executioner could go to Indiana in 2001 to help federal authorities put mass killer Timothy McVeigh to death, he had to take care of one detail:

He needed permission from his probation officer to leave the state.

The request, by a licensed practical nurse from Farmington, set off alarms within the Missouri Division of Probation and Parole. At least one supervisor spoke out to an agency administrator.

"As I stated to you previously, it seems bizarre to me that we would knowingly allow an offender, on active supervision, to participate in the execution process at any level," she wrote.

But that memo and others obtained by the Post-Dispatch show that high-level federal and state corrections officials did let the nurse make the trip — and continue to work on Missouri's lethal-injection team.

The use of someone with such legal troubles — two felonies plea-bargained down to misdemeanors for stalking and tampering with property — raises further questions about the expertise and backgrounds of the people the government entrusts to carry out the ultimate punishment.

That punishment is already on hold in 35 states and in the federal system while the U.S. Supreme Court considers arguments in a Kentucky lethal-injection case. Lawyers for the condemned say the process is open to mistakes that could inflict extreme pain, in violation of the Eighth Amendment protection from cruel or unusual punishment.

A 36th state, New Jersey, became last month the first in more than 40 years to abandon capital punishment because of wide-ranging concerns. One more state uses only the electric chair.

Court challenges have attacked not only the three-drug lethal-injection sequence but also the ability of executioners to get it consistently right. Indeed, incidents in Ohio and Florida show that mistakes have been made.

In federal court in Kansas City in 2006, the doctor who developed Missouri's procedure — and supervised 54 executions — testified anonymously that he was dyslexic, had problems with numbers and knowingly varied doses of the lethal drugs by as much as half.

A Post-Dispatch investigation identified him as Dr. Alan Doerhoff, a surgeon from Jefferson City who had provided inmate care in Missouri prisons. The newspaper also revealed that he had been sued for malpractice at least 20 times, had his privileges revoked at two hospitals, had made false statements in two court cases and had been publicly reprimanded by the state Board of Healing Arts for hiding his malpractice litigation history.

Doerhoff also was part of the federal government's execution team, according to court filings last year in a federal death penalty appeal.

Missouri prison officials have long complained about their difficulty in finding qualified medical professionals to work at executions. Complicating matters is that most medical professional organizations, notably the American Medical Association, specifically ban their members from participating.

Critics say that creates pressure for death chambers to use whomever they can get.

A CASE ABOUT STALKING

Unlike the situation with Doerhoff, no one has publicly questioned the competence of the nurse — David L. Pinkley, 45 — as a member of the execution team. Memos from the probation and parole division describe his "special knowledge, skills and abilities" as "one of a kind."

His nursing license is unblemished. He works in the surgical department at Mineral Area Regional Medical Center in Farmington. From 1986-89, he was a psychiatric aide for the state at the Farmington State Hospital.

It is unclear when he began working on state executions, or how many he did. The memos show he was recommended by the warden at the Potosi Correctional Center for the federal execution team, put in place in 2000.

In 1998, Pinkley was charged with felony aggravated stalking and first-degree tampering with property after he was accused of threatening a man and repeatedly vandalizing his vehicle and home over a relationship the man was having with Pinkley's estranged wife.

Between August and the year's end, the victim reported to police that his truck's windshield and headlights had been smashed and it had been spray-painted and scratched. He accused Pinkley of backing over his mailbox and returning to damage it again, smashing five windows at his house and breaking his daughter's bedroom window. He alleged that Pinkley had left voice messages threatening violence against him and his family.

A police report says the victim played one of the messages for a St. Francois County sheriff's deputy: "I'll burn your (expletive) house down and blow your (expletive) head off!"

Pinkley maintained in court that he did not stalk anyone or cause any damage, but he pleaded no contest in St. Francois County to misdemeanor counts of stalking and tampering with property. He paid the victim $750 and was ordered to serve two years of supervised probation.

The judge gave him a "suspended imposition of sentence," a special disposition that sealed the record of the conviction after completion of his probation.

He has no other known criminal record.

OFFICIALS KNEW

The memos obtained by the Post-Dispatch say state and federal officials were aware of Pinkley's conviction and probation status and wanted to use him anyway.

The probation division supervisor who raised concerns, in the February 2001 memo, wrote that when Pinkley first asked to travel to the U.S. penitentiary in Terre Haute in June 2000, he showed her a business card from the penitentiary's warden, Harley G. Lappin.

The supervisor wrote that she called the federal prison and told an acting warden about Pinkley's probation status and "he seemed alarmed, and informed me he secured the services of this individual, as recommended by authorities at Potosi Correctional Center. ..."

She also told the warden at Potosi, then home of the Missouri execution chamber, who, she said, "seemed alarmed, not knowing the offender was on supervision."

When she checked Pinkley's file in January 2001, the supervisor wrote, she learned that he already had been approved for five trips to Indiana the previous year.

In an April 2001 memo, the administrator wrote that Pinkley's request had been reviewed all the way up through Dora Schriro, then director of the Missouri Department of Corrections, and that "federal authorities have apparently done the same thing."

The paperwork reflects Pinkley's explanation that he would be administering McVeigh's lethal injection. It is not clear whether he did, although his permits to travel to the Indiana prison included May 30 to June 30, 2001; McVeigh was executed that June 11.

Lappin, now director of the Federal Bureau of Prisons, did not respond to a phone call and e-mail request for comment. An agency spokeswoman declined to comment.

Schriro, who now directs the Arizona corrections system, said through a spokesman that she did not remember the situation with Pinkley.

Pinkley did not reply to repeated phone messages left at the hospital where he works and with his mother. Approached outside work, he walked away from a reporter and drove off without taking questions.

Larry Crawford, the corrections department director, declined to discuss Pinkley by name. He said that the time span was before his tenure and that the relevant court records — which he said were about a "minor" misdemeanor — were sealed.

The director also said there were people with traffic and minor misdemeanor convictions among the 11,000 prison employees and additional contract workers. One misdemeanor wouldn't prevent "a doctor or nurse from working in our facility or any other hospital anywhere in the country,'' he said.

Missouri was "diligent" in using medical personnel to assist with executions even though it had no obligation to do so, Crawford said. He emphasized that prison staff, not medical people, pushed the drug plungers.

A COMPLEX PROCESS

Had either Doerhoff or Pinkley merely pulled a lever on a gallows, the doctor's competence and the nurse's criminal record might not be at issue.

But modern chemical execution carries a risk of excruciating pain, say lawyers who drove the issue to a test last week before the U.S. Supreme Court.

Thirty-five of the 36 states that still have the death penalty, as well as the federal government, use the three-drug series developed in the 1970s as a more humane successor to methods that in various places included the gas chamber, electric chair, noose or firing squad.

But it has its own critics, including veterinarians, who say it is unsuitable to euthanize animals, and its inventor, who has said he has qualms about non-doctors administering the chemicals.

Dosing is critical, say defense lawyers. They argue that if the sedative first drug doesn't work, the paralytic effect of the respiration-stopping second drug could make it impossible for the condemned to communicate excruciating pain from the cardiac arrest caused by the third.

Court challenges have revealed that several states use poorly trained personnel, some with little or no medical background, to give the injection.

The process is not simple. It requires the insertion of a catheter into the bloodstream and precise doses of drugs that arrive at the prison as powder and must be mixed.

In December 2006, Florida's team needed 37 minutes, instead of the usual 15, to execute Angel Nievas Diaz. Nievas Diaz appeared to grimace and gasp for breath on the gurney, according to news accounts. An autopsy found that hypodermic needles had been pushed all the way through blood vessels into soft tissue, causing chemical burns on both arms.

In Ohio in May 2006, an execution was delayed 90 minutes while team members struggled to find a suitable vein as the condemned man, Joseph Lewis Clark, raised his head from the gurney and shouted, "It don't work ... it ain't working."

Kent Scheidegger, executive director of the pro-death penalty Criminal Justice Legal Foundation, blames the "medicalization" of the death penalty for the latest court battles.

He proposed bringing back the poison gas chamber — a method pushed aside in Missouri and other states for the lethal injection — but using a gas that causes less pain than the traditional cyanide.

"Any fool can turn a valve," he said. "You'd have a much broader pool of people to select from because you wouldn't need anyone with medical knowledge.

"If you are determined that you need licensed professionals involved, you're going to have the problem that very few are willing to do it," he said.

As for employing a convicted stalker to perform executions, he said, "It would be better not to have someone with that kind of history involved."

He added that by relying on the few medical professionals who were willing to participate, Missouri and the Federal Bureau of Prisons were "trying to do it right, and I don't criticize them for doing it right."

THE DYSLEXIC DOCTOR

In Missouri, a federal judge suspended the state's executions in 2006 after Doerhoff's testimony — from behind a screen to protect his identity — that he was dyslexic, did not record the actual amount of anesthetic delivered, sometimes used only half the suggested dose and gauged the depth of the anesthesia by watching facial expressions through a window.

Doerhoff testified that he knew of no written protocol and that he changed it freely at his own discretion.

State Sen. Kevin Engler, R-Farmington, said last week that after reading the Post-Dispatch story about Doerhoff in July 2006, he came away "appalled" by the doctor's record and qualifications.

He said the Department of Corrections had "been very lax" in screening potential executioners, but noted that it had new quality controls.

And if someone on the state's execution team has a criminal record, he said, "I don't mind that coming out."

Engler was the Senate sponsor of a Missouri law enacted last year to protect the identities of current or former executioners and make it easier for them to seek civil damages if their names are exposed.

"Those are people living in my district, doing their jobs," he said. "It's unfair to release their names so people" could harass or harm them.

The law was passed in response to the Post-Dispatch's naming of Doerhoff.

Richard C. Dieter, the executive director of the Death Penalty Information Center, a nonprofit research group opposed to the death penalty, said, "There is a tradition of anonymity for executioners, but until now it wasn't necessary to know how it's being done."

"The people administering the injection — their qualifications are partly what is in question. In order to test (their qualifications) you need to know who they are."

Dieter said he was shocked that Pinkley "had these problems and then was being given responsibility for a very sensitive, nationally important federal (execution)."

"He may be good, he may not be. But you don't allow people who are on probation, for violence, in the execution chamber or anywhere near it."

That officials signed off on his participation was "incompetence," Dieter said. "You avoid people like that despite the fact that they might have some skill. There's just too much risk. Is this the best way to carry out something so serious as taking a human life? Even that of McVeigh?"

Deborah Denno, a Fordham University law professor and expert on capital punishment methods, said Pinkley's involvement was "shocking on numerous levels."

Given revelations about Doerhoff and Pinkley, said Denno, "It suggests security is not the reason for not revealing their identities. They have other reasons, and the reasons are that these people have troubled behavioral and emotional histories."

KEEPING SECRETS

Several states have laws keeping the identity of executioners confidential and exempt from public-record laws.

In Florida, the doctor who oversaw the botched Nievas Diaz execution testified by speaker phone before a state commission on lethal injection, but did so anonymously with his voice altered.

Missouri's new law took it a step further.

It was written by Department of Corrections lawyers, said Rep. Danielle Moore, R-Fulton, a member of a joint committee that oversees the department, and who sponsored the bill in the House.

"The DOC wants to be able to hire the most qualified and the best doctors for this lethal injection, to administer lethal gas or chemicals," said Moore. "Therefore, if anonymity is offered to the execution team, then the very best doctors would, hopefully, feel that they could serve in that capacity."

Crawford, the corrections director, said it had been "extremely difficult" to find medical help for executions. But he said the Post-Dispatch story naming Doerhoff actually helped the department make connections with medical professionals who felt executions "ought to be done right."

Moore said her committee regularly toured prisons and inquired about every aspect, including executions.

"Trust me, we ask all these questions. Who is now serving on the team? We ask questions about everything."

Moore said she didn't know the department had used a convicted stalker as an executioner until asked about it by the Post-Dispatch.

"It's never come up, and I've never even thought about it," she said. "I can't imagine that the DOC would choose someone in that capacity."

She seemed taken aback. "I'm writing this down. A member of an execution team who was on probation for stalking. ... I am going to be making some inquiries for sure."

She added: "If it is true, it would give me grave concern. Because, frankly, I didn't know anyone who was on probation would be allowed to work in the DOC."

McVeigh, whose bomb killed 168 people — including 19 children — in a federal building in Oklahoma City in 1995, was the first federal death row inmate to be executed in 38 years.

The bureau assembled an execution team and developed a protocol using the same three-drug injection used by other states.

The Missouri probation and parole administrator who confirmed Pinkley's request for travel obviously recognized the potential for controversy.

In one of the memos, she wrote, "It would be extremely problematic for David Pinkley and this department if the media got wind of this."

jkohler@post-dispatch.com | 314-340-8337

TO OUR READERS

In the accompanying article, we reveal that a licensed practical nurse from Farmington who has been involved in lethal-injection executions of death-row inmates in the Missouri and the federal prison systems has his own criminal history.

We reveal that state and federal officials were aware of that history and, in 2001, gave special permission for the nurse, who was under probation restrictions, to continue on their execution teams and even travel to Indiana for the execution of Oklahoma City bomber Timothy McVeigh. We also reveal the name of the nurse.

We do so knowing the state of Missouri seeks to protect the identity of its executioners. We do so because we believe the public benefit of lifting this cloak of secrecy outweighs privacy concerns. We strongly believe that how the state and federal governments handled this situation provides valuable insight for the public into a secretive execution process at the center of a controversial national debate — and a much-watched U.S. Supreme Court case.

The public, the media, other government and licensing agencies, and even the courts, cannot fully examine the competence, background and integrity of those hired to fulfill this most important and trusted role without knowing the identity of members of the execution team.

This is not a decision we make lightly.

In July 2006, this newspaper revealed the name of another member of Missouri's secret death-row execution team.

A month before, a federal judge in Kansas City had suspended the state's lethal-injection executions. The judge did so out of concern about the mystery doctor's qualifications and methods, and out of concern that the state couldn't guarantee it wasn't delivering unconstitutionally cruel punishment in its death chamber. Our investigation revealed that this doctor was Dr. Alan Doerhoff, a Jefferson City surgeon, and that he had been sued for malpractice at least 20 times, had had his privileges revoked from two hospitals and been publicly reprimanded by the state Board of Healing Arts for hiding his history of malpractice lawsuits.

Last year, the state notified the court that it had revised its protocols and that Doerhoff would no longer participate in executions.

In response to the Post-Dispatch articles on Doerhoff, the Missouri Legislature took its own action. At the urging of the Missouri Department of Corrections, legislators revised state statutes to ban any person from "knowingly disclosing the identity of a current or former member of an execution team.''

We believe the law is unconstitutional, and we also believe it stifles public discussion and hinders governmental accountability.

ARNIE ROBBINS — EDITOR

Execution history

1972 — The U.S. Supreme Court throws out all state death penalty laws, but capital punishment is later reinstated.

1983 — Illinois Gov. James Thompson signs a bill making Illinois the sixth state to use lethal injection.

1988 — Missouri Gov. John Ashcroft signs law allowing capital punishment by means of lethal gas or lethal injection at the discretion of the director of the Department of Corrections.

2000 — Illinois Gov. George Ryan halts all executions after 13 people condemned to death were found to have been wrongfully convicted.

2001 — Oklahoma City bomber Timothy McVeigh is executed at the U.S. penitentiary in Terre Haute, Ind. He is the first federal prisoner to be executed in 38 years.

2003 — Days before leaving office, Ryan grants clemency to all 167 death row inmates in Illinois, saying a flawed process led to the sentences.

2006 — A federal judge halts executions in Missouri, saying he is concerned that its current system poses unacceptable risk of pain.

2007 — Federal appeals judges in St. Louis let Missouri resume executions, finding there are sufficient safeguards to protect the condemned.

2007 — A Missouri law is enacted to protect the identities of current or former executioners and make it easier for them to seek civil damages if their names are exposed.

2007 — The U.S. Supreme Court agrees to hear arguments in a Kentucky death-penalty appeal in January, and state and lower federal courts nationwide halt all scheduled executions.

2008 — A lawyer for two Kentucky death row inmates tells the Supreme Court that lethal injection carries the potential to cause unnecessary and excruciating pain. Two justices say it might be better to send the case to lower courts to compare whether the process is riskier than a single, massive dose of barbiturate. A decision is expected later this year.