ST. LOUIS (AP) — Missouri’s execution protocol allows for “surgery without anesthesia” if the typical process of finding a suitable vein to inject the lethal drug doesn’t work, lawyers for a death row inmate say in an appeal aimed at saving his life.
Brian DorseyThe 52-year-old is scheduled to be executed Tuesday for killing his cousin and her husband in their central Missouri home in 2006. His lawyers are seeking a pardon from Gov. Mike Parsons and have several appeals pending.
A federal appeal focuses on how Missouri injected the fatal dose of pentobarbital. The written protocol requires placement of primary and secondary intravenous lines. But it offers no guidance on how far the execution team can go to find a suitable vein, leaving open the possibility of an invasive “reduction procedure,” Dorsey’s lawyers say.
The procedure involves an incision that can be several inches wide and several inches deep. Forceps are used to tear tissue from a vein that becomes the injection point.
“This is an operation,” said Arin Brenner, a federal public defender and one of the attorneys representing Dorsey. “It will be an operation without anesthesia.”
Brenner said Dorsey faces a higher than normal risk of needing a reduction because he is overweight. His veins may also be at risk because he is diabetic and a former intravenous drug user.
Attorney General spokesman Andrew Bailey had no comment but referred to the state’s response to the complaint.
“Abatement procedures are rarely, if ever, used under Missouri’s implementation protocol,” the response said. “And in the event that a reduction procedure is required, the medical staff has access to pain-relieving medications.”
The drug would be insufficient, and if the procedure is necessary, Dorsey would have to receive a local anesthetic, said Megan Crane, another of his attorneys.
“It’s extremely painful,” Crane said. “Even if oral pain relief or an opioid is given, it won’t relieve the pain.”
Dorsey’s attorneys say using the surgical procedure would violate his constitutional guarantee against cruel and unusual punishment, as well as his right to religious freedom, because it would prevent him from having meaningful interactions with his spiritual advisor, including the administration of last rites.
The question is not theoretical. A serial killer is scheduled to be executed in Idaho Thomas Eugene Creech in February it was suspended after a medical team unsuccessfully tried eight times to establish an IV. It is unclear if, when and how the state might try to execute him again.
Missouri’s execution process is shrouded in secrecy, so it’s impossible to know if or how often summary procedures were necessary. No independent observer saw the IV line inserted. The spiritual advisor does not enter the room until the preparation is complete. Witnesses sit in dark rooms with the curtains drawn until prison officials open them seconds before injecting the drug.
Dorsey’s lawyers wonder if layoff procedure was used in January 2023 Amber McLaughlin was executed. It is believed to be the first execution of an openly transgender person in the United States
The Rev. Lauren Bennett of St. Louis serves as McLaughlin’s spiritual advisor. She remembers McLaughlin saying, “Oh, oh, oh. It hurts,” but said McLaughlin was unable to explain the cause of her pain before her death.
IV issues have been problematic in executions elsewhere.
In 2014, an Oklahoma inmate Clayton Lockett was pronounced dead 43 minutes after his execution began, at times writhing in pain and gritting his teeth during the process. A state investigation showed the execution team repeatedly failing to insert an IV line into his arms, jugular vein, foot and subclavian vein in his upper torso before eventually threading a line through a vein in Lockett’s groin.
The review found that Lockett died after the line came loose and that the lethal chemicals were pumped into the tissue around the injection site instead of directly into his blood. There is no indication in the report that Lockett was ever sedated.
In 2022, it took more than three hours to complete Joe Nathan James Jr in Alabama. The state said the process was delayed because of difficulties in establishing an IV line. Dr. Joel Life, a professor of anesthesiology at Emory University and a lethal injection expert who witnessed the private autopsy, said he saw “multiple puncture sites on both arms” and two cuts in the middle of the arm, which he said are indications of retrenchment efforts. It is unclear if he was sedated.
Messages were left Friday with corrections officials in Oklahoma and Alabama.
Dorsey, a former Jefferson City resident, was convicted of killing his cousin, Sarah Bonney, and her husband, Ben, on Dec. 23, 2006, at their home near New Bloomfield. Prosecutors said earlier that day, Dorsey had called Sarah Bonney looking to borrow money to pay two drug dealers who were in his apartment.
Dorsey went to the Bonnies’ home that night. After they went to bed, Dorsey retrieved a shotgun from the garage and killed them both before sexually assaulting Sarah Bonney’s body, prosecutors said.
Sarah Bonney’s parents discovered the bodies the next day. The couple’s 4-year-old daughter was unharmed.
In the clemency petition, 72 current and former state corrections officers asked Parson, a Republican and former county sheriff, to commute Dorsey’s sentence to life in prison, citing his virtually flawless record of good behavior while in prison.
“The Brian I’ve known for years couldn’t hurt anyone,” one officer wrote. “The Brian I know does not deserve to be executed.”
A spokesman said Parsons was still considering the clemency application.
The appeal to the U.S. Supreme Court focused on the $12,000 flat fee for Dorsey’s court-appointed attorneys. The complaint alleges that with the flat fee, his attorneys had a financial incentive to resolve the case quickly. They encouraged Dorsey to plead guilty, but without asking prosecutors to agree to life in prison instead of the death penalty.
Dorsey’s attorneys also asked the Missouri Supreme Court to stay the execution on the grounds that the acting director of the Department of Corrections, Trevor Foley, had not been confirmed by the state Senate and was therefore not qualified to oversee the execution. The court rejected the request on Friday.
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AP reporter Sean Murphy in Oklahoma City contributed.
