Lawyers: Inmates died in 'agony' from injections

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The lawyers for David Clayton Hill said toxicology results of 23 executed inmates show that the levels of the sedative were so low in at least two cases it's certain inmates were conscious when the drugs were administered to paralyze their lungs and stop their hearts.

Hill was convicted in the 1994 slaying of Georgetown Police Maj. Spencer Guerry, who was shot to death during a traffic stop.

Misty Nicholson of Greenville, whose husband, Eric, a state trooper, was shot to death in December 2000, said she believes the lawyers' arguments are a "futile attempt" to escape the death penalty. The man convicted in her husband's death, John Richard Wood, was condemned and sits on South Carolina's Death Row.

"In this case and other cases when officers were shot and killed, they weren't given the option of choosing which way they wanted to die," she said. "I think lethal injection is a much more humane way of dying than to be shot and killed in the line of duty."

Hill, who was scheduled to die March 19, was granted a stay of execution last week by U.S. District Judge David Norton.

State Attorney General Henry McMaster has appealed the stay, arguing it was procedurally improper and there's nothing wrong with the state's lethal injections.

"South Carolina's use of lethal injection does not constitute cruel and unusual punishment," McMaster and his assistants argued in their appeal. "The significant and irreparable harm of execution is balanced by an equally 'significant and irreparable harm to the legal process.'"

Lawyers for other condemned inmates around the nation have also argued lethal injection is a "cruel and unusual" form of punishment but Hill's lawyers say his case is the first to document the allegation with toxicology levels of executed inmates.

The inmate with the lowest level of sedative in his blood, according to Hill's lawyers, was Kevin Dean Young, executed in November 2000 for the 1988 slaying of an Anderson principal.

State Sen. Ralph Anderson, a Greenville Democrat who sits on the Senate Corrections Committee, said the state should be sure it is following proper procedures in the executions.

"That's a bad way to leave this world," he said of inmates who may still be conscious.

Norton granted the stay, saying Hill's lawyers raised legitimate points about the way in which South Carolina administers lethal injections. He said other states and the federal government use a larger dose of the sedative in their lethal injections.

Hill's lawyers argued that the Department of Corrections suppressed the toxicology evidence from them and from the state's own expert. They said they received the data only as the result of the federal hearing.

Jerome Nickerson, Hill's lead appellate lawyer, said the first two inmates executed by lethal injection in the state registered much higher levels of the sedative. Since 1998, he said, the levels have varied significantly. In one case, he said, there is a 90 percent probability the inmate was conscious, while in three others there is a 50 percent probability.

He said there are many possible explanations.

"There may be a mixing problem," he said. "There may be a diluting problem. There needs to be an investigation to see what's going on."

South Carolina uses a combination of three drugs to execute inmates: the sedative, referred to by the lawyers as sodium thiopental; pancurium bromide and potassium chloride, used to paralyze the lungs and then to stop the heart.

The state uses emergency medical technicians in the process instead of a physician.

"In short," Hill's lawyers argued in their written brief, "approximately one quarter of all individuals subjected to lethal injection in South Carolina were conscious while they were chemically suffocating from Pancurium Bromide (banned in this state for the euthanasia of animals), and suffering the agony of a potassium chloride induced heart attack."

The state's lawyers argued the sedative used, according to their expert, renders "most people unconscious within 60 seconds."

The chemicals used, they argued, "results in an inmate's rapid and painless death."

McMaster argued that to grant a permanent stay over the lethal injection issue would prove "disastrous" for states carrying out executions. Similar lawsuits by condemned inmates "have begun to spread like a virus."

Nickerson said such appeals have had mixed results, with only one being upheld by the U.S. Supreme Court.

Andy Paras contributed to this story.