Problems came with 2nd needle

After three tries, officials abandon attempts to insert a second line into Bennie Demps. That may have violated execution protocols.

By SHELBY OPPEL and JO BECKER

© St. Petersburg Times, published June 9, 2000

TALLAHASSEE -- Gov. Jeb Bush on Thursday staunchly defended the controversial handling of Florida's latest lethal injection, insisting state corrections officials performed the procedure "according to the textbook."

"There was no botched nature to it at all," Bush said.

But newly released details about the struggle to insert a second intravenous needle into three-time convicted killer Bennie Demps show state officials may have violated their own written execution protocol.

That protocol says the medical technicians "shall complete" two intravenous lines into the condemned inmate. The governor's office says only one line was inserted, after technicians tried to insert a needle in at least four locations on Demps' body.

In the wake of Demps' execution, other questions surfaced among death penalty opponents about the qualifications of the medical technicians who attempted to insert the needle and about the highly secretive procedure that has developed in the six months since the state switched its method of execution to lethal injection.

Demps' final words -- a six-minute diatribe describing repeated attempts to insert the needle in his leg and groin -- has death row attorneys preparing to challenge lethal injection as cruel and unusual punishment.

Michael Reiter is the attorney for convicted murderer Thomas Provenzano, who is scheduled to die June 20. Citing the state's history of botched executions, Reiter said: "I don't think they have the proper training. I don't think they have the competence and they make a mess of things."

Demps' last request was to ask for an investigation into his execution. Alachua County State Attorney Rod Smith declined that request, made Thursday by Demps' attorney, concluding, "Mr. Demps was legally executed for a murder."

But Smith gave the most graphic indication yet of what happened to Demps in the hour before a curtain parted to allow witnesses to see him strapped to a gurney in the death chamber.

In a written statement, Smith said an observer from his office described five punctures in Demps' body -- confirming Demps' dying claims. The marks were a large-bore needle mark in Demps' right groin, a small incision inside his right ankle and two puncture wounds in his right arm. His left arm showed a mark from the intravenous needle that carried the fatal drugs into Demps' bloodstream.

Before dying, Demps asserted prison officials began attempts to insert needles at 5:40 p.m. and made a final cut in his leg at 6:20 p.m.

Justin Sayfie, a spokesman for Bush, gave this chronology Thursday about how the marks and puncture wounds appeared:

After the first intravenous needle was successfully inserted into Demps' left arm, officials attempted to insert a second needle into his right arm, his right groin and finally into his right ankle. Failing to find a vein in any of those three places, officials abandoned the effort and decided to use only one intravenous needle for the execution, Sayfie said.

Before dying, Demps complained that the process was painful and caused him to bleed "profusely."

"That's clearly torture," said Abe Bonowitz, director of the newly formed Floridians for Alternatives to the Death Penalty.

C.J. Drake, spokesman for the Department of Corrections, disagreed.

"This guy spoke for up to seven minutes so it's hard to believe this guy was in that much pain," he said.

"But for the needles, it's not an invasive procedure."

When corrections officials abandoned the attempt to insert the second intravenous needle, they appeared to violate their own protocol, which states: "The designated members of the Execution Team shall complete the primary and alternate IV and the heart monitor setup(s)."

Demps was executed Wednesday for the slaying of another Florida State Prison inmate. He also had been convicted of killing two other people.

Bush, visiting Tampa on Thursday, said justice was served.

"It wasn't botched. They went according to protocol, and it worked. . . . There was no botched nature to it at all," the governor said. "It gives me no great joy, but he was not in pain. Lethal injection worked. And it was all done according to the textbook, so that's just the way it is."

The department, which has presided over three botched executions in the last nine years, has a history of not following execution protocol. After Allen "Tiny" Lee Davis died in the electric chair in a bloody spectacle last year, an attorney for Provenzano challenged the state's use of the electric chair.

The state Supreme Court rejected his claims, but scolded the department.

"Once again, we are troubled that there is an indication that DOC has not followed the protocol established for the appropriate functioning of the electric chair and carrying out of the death penalty," the July 1999 opinion read.

Reiter, who is representing Provenzano, said the issue will likely be raised in a challenge before the Florida Supreme Court, but he added that the court has allowed executions to continue in the past when it had knowledge that protocols were violated.

"The Florida Supreme Court is not going to abolish the death penalty merely because the department fails to follow protocol, even though the court should," he said. "My feeling is we're going to have to go to the U.S. Supreme Court and say, "Look, these people in Florida don't know what they're doing and they can't even follow their own rules.' "

Drake, the corrections spokesman, did not want to comment on the matter, saying "obviously this thing is headed for litigation."

In fact, much of the execution preparations are cloaked in secrecy, which makes it more difficult to mount a legal challenge. The intravenous needles are inserted out of view of the public. An independent witness from the Florida Department of Law Enforcement observes the procedure but does not file a written report or share his observations "unless he is compelled to do so in a legal proceeding," Drake said.

Drake would say only that "medically trained personnel" inserted the intravenous needles. The department's vaguely worded protocols say nothing about what qualifications, training or credentials are required to perform that procedure, and Drake refused to elaborate.

In Demps' case, Warden James Crosby said, "a surgical procedure" was performed in an attempt to find a suitable vein. Department officials would not say who performed that surgery, raising a new set of questions: On the one hand, the American Medical Association prohibits doctors from participating in executions. On the other, Reiter questioned whether a "surgical procedure" should be done by anyone other than a doctor.

Michael Radelet, a University of Florida professor who studies the death penalty, said Florida should study the role of medical personnel and the doctor who attended Demps' execution. "What were they doing in there?" he said. "Those physicians' presence is a clear violation of the ethical standards of the American Medical Association."

The Demps execution is the 17th report of a botched lethal injection since 1982, when the first inmate was put to death by needle in Texas, Radelet said.

Radelet could recall only one other lethal injection, in 1996 in Indiana, during which officials struggled to find a vein for as long as they did with Demps.

If Demps' claims are true, Radelet said, "Florida has set a new record for the most prolonged and botched lethal injection in the history of the world."

Most of the mistakes in other states have occurred because executioners are unable to find a good vein, as was the case with Demps. Others have resulted from improper administration of chemicals.

Even in a hospital or a doctor's office, experts say locating a vein and inserting an intravenous needle can be difficult.

Veins can be hard to find if a patient is dehydrated, since fluid is stored in the blood vessels. Fat or heavily muscled patients can pose problems. Even a deep tan can make skin tough and hard to penetrate.

And a man about to be put to death could pose another problem entirely.

Willa Fuller, a registered nurse with the Florida Nurses Association, described what appears to happen to some patients who fear needles.

"There's that unspoken "You're scared to death,' " she said, "and your veins will constrict."

Times staff writers Sydney P. Freedberg and Kyle Parks contributed to this report.

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