Lawyers seek details on Ohio executioner's cancer

[September 23, 2011]  COLUMBUS, Ohio (AP) -- The Ohio executioner known only as Team Member 17 has cancer, and a federal judge is allowing lawyers for a condemned inmate to seek details about his condition despite state concerns their request is merely meant to annoy and embarrass him.

The legal battle comes amid a renewed debate over the death penalty after the execution this week of a Georgia inmate whose pleas of innocence sparked worldwide outrage.

It also opens a window into the secrecy-shrouded lives of the teams responsible for putting inmates to death. States conscientiously protect their identities to shield them from harassment and questions about medical ethics.

Lawyers for condemned inmates often raise 11th-hour questions in an effort to buy their clients time, and often they're successful. The information about the Ohio executioner's health is relevant because it bears on his "ability to fulfill the demands of that position," U.S. District Judge Gregory Frost said Tuesday.

Inmate Joseph Murphy, 46, is scheduled to die by lethal injection Oct. 18 for slashing the throat of Ruth Predmore in Marion in a 1987 robbery that netted her penny collection. The Ohio Parole Board was expected to make a recommendation Friday morning on a separate request by Murphy's lawyers for mercy.

Ohio's execution team consists of three individuals who prepare and administer the drug and a bigger group that serves as security, escorting inmates to the death chamber. The training executioners receive for inserting IVs has long been fought over in several lawsuits.

Team Member 17 is a full-time prison guard at Oakwood Correctional Facility in Lima who does not insert IVs as part of his regular job, according to testimony he gave in a related federal lawsuit two years ago.

Like all Ohio executioners, he volunteers for the procedures, which take place at the maximum-security prison in Lucasville. He has been both a backup executioner, preparing the drugs beforehand, and the administrator of the injection.

Team Member 17 has had cancer at least since May 2010, when he missed the execution of Michael Beuke, a hitchhiker who killed three people in the Cincinnati area in 1983 and was put to death last year, according to a court document filed by the state seeking to shield information about the cancer. The state proceeded without Team Member 17 and without finding a backup.

The court documents say nothing about the type of cancer or how he is being treated.

The only previous exposure he had to inserting IVs was during his part-time work as a volunteer emergency medical technician, he testified. At that time, he had served on the execution team for several years. He said he joined the team after the prison warden asked him.

He couldn't recall exactly what he did during the 2005 execution of Herman Ashworth, who beat a man to death in 1996.

"I might have been the one that pushed the drugs on that one there, but I'm not sure," he testified in 2009.

A car accident caused him to miss the January 2010 execution of Vernon Smith, a Toledo man who shot a store clerk in 1993, according to court documents.

Murphy's lawyers "have produced no evidence that Team Member 17's physical condition has had any effect on the performance of his duties related to the conduct of court-ordered executions," Thomas Madden, an assistant Ohio attorney general, wrote Sept. 14.

The state opposed the request by Murphy's attorneys as intrusive and potentially putting the executioner's identity at risk. The state also said the judge should recognize a physician-patient privilege.

Murphy's attorneys say they agree the executioner should remain anonymous but argued that his health has everything to do with his job.

"There are hundreds of different types of cancer," federal public defender Carol Wright said in a Sept. 16 filing. "The symptoms, treatment, prognosis, and other factors are dependent on the type of cancer."

The relevance of an executioner's health has arisen elsewhere. A judge banned Dr. Alan Doerhoff from participating in Missouri executions after he acknowledged in 2006 he had dyslexia and it was not unusual for him to make mistakes.

The same year in California, a judge said the state had inconsistently screened execution team members, including the lead executioner, who had post-traumatic stress disorder from his work in prisons.

Arizona removed an execution team member after a judge's 2009 order noting the man had been treated for post-traumatic stress disorder following military service in Iraq.

During the 2009 hearings in federal court, a doctor testified that Ohio's chief executioner -- Team Member 18 -- was being treated for several ailments, including diabetes, hypertension, obesity and depression.

At the time, Frost ruled that while Team Member 18's health didn't affect executions, the issue could be raised in other cases.

The judge wrote, "This is not to say that the physical or mental health of an execution team member can never give rise to an issue that informs the constitutionality of Ohio's process."

In 2009, Ohio became the first state to switch to a single drug for executing inmates instead of the usual three-drug cocktail. It switched to a different single drug this year because of a shortage. In both cases, other states followed suit.

Frost has noted problems with Ohio's execution procedures but said they fall short of violating the constitution. In July, he ruled the state didn't follow its own rules for executions on everything from staffing to checking an inmate's veins, a decision that has postponed three executions while the policies are changed.

In September 2009, executioners -- including Team Member 17 -- tried for more than an hour to find a suitable vein in inmate Romell Broom, only to have to postpone the execution.

On Wednesday, Georgia executed Troy Davis for the murder of an off-duty police officer despite his insistence that he didn't do it, a case that captured the attention of thousands worldwide, including former President Jimmy Carter and the pope.

[Associated Press; By ANDREW WELSH-HUGGINS]

Andrew Welsh-Huggins can be reached at http://twitter.com/awhcolumbus.

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