A lawyer for a Ohio killer whose slow, gasping execution with a new drug combination renewed questions about the death penalty was suspended temporarily amid an investigation into whether he coached the condemned man to fake symptoms of suffocation, it has emerged.
The Office of the Public Defender said Robert Lowe, one of the lawyers representing Dennis McGuire, was back at work after an internal review failed to substantiate the allegation.
State prison records released yesterday say McGuire told guards that Mr Lowe counselled him to make a show of his death that would, perhaps, lead to the abolition of the death penalty. But three accounts from prison officials indicate McGuire refused to put on a display.
“He wants me to put on this big show in front of my kids, all right when I’m dying!” McGuire is reported as having told one guard. “I ain’t gonna do this. It’s about me and my kids, not him and his cause.”
Amy Borror, a spokeswoman for the public defender’s office, said all accounts from execution eyewitnesses – which did not include Mr Lowe – indicated McGuire was unconscious at the time he struggled to breathe.
“We have no way of knowing, obviously, because we can’t interview Mr McGuire,” she said.
Prison officials alerted Ohio governor John Kasich’s lawyer the night before the execution that McGuire had been overheard telling family members he had been “encouraged to feign suffocation when the lethal injection drugs were first administered”, according to a statement released by the public defender’s office. The investigation was first reported by The Columbus Dispatch.
McGuire, 53, was put to death on January 16 for raping and killing a newly-married pregnant woman in 1989. He was executed with a combination of drugs – the sedative midazolam and the painkiller hydromorphone – that had never before been used in the US and his fitful final moments sparked criticism and calls for a death penalty moratorium.
McGuire took 26 minutes to die after the chemicals began flowing – the longest execution of the 53 carried out in Ohio since capital punishment resumed 15 years ago. Family members wept and later said the process amounted to torture. They have sued, claiming undue cruelty.
Ms Borror said Mr Lowe walked McGuire through the steps involved in an execution and it was unclear whether McGuire’s statements may have related to his interpretation of an arrangement with Mr Lowe to give a thumbs-up during the execution as a way of determining when he lost consciousness.
Due to continuing litigation, Ms Borror said the public defender’s office closely watches the sequence of events during the execution process.
One report from the Ohio Department of Rehabilitation and Correction suggests McGuire believed the signalling system he set up with his lawyer – including use of a thumbs-up – could be used to save his life.
The night before his execution, a corrections team leader reported being told by McGuire that he understood Mr Lowe as saying “if he started to choke or jerk in any way” the governor would put a stop to the execution.
Two prison employees reported hearing McGuire say that, if it were not for his daughter being present at his execution, he would “really put on a show”.
The public defender’s office did not permit Mr Lowe or any other staff from the office to witness the execution “in order to avoid any appearance that OPD staff in any way influenced the execution process”, Ms Borror said.