Philip Workman was pronounced dead at 1:38 a.m. Wednesday, making him the third inmate put to death in Tennessee in 47 years despite evidence casting new doubt on his guilt and growing concerns that supposedly benign lethal injections may actually cause excruciating pain.

Without explanation, on Tuesday morning the 6th U.S. Circuit Court of Appeals refused to consider Workman’s appeal regarding new evidence, which his lawyers say was withheld by the prosecution for years and could prove his innocence. Several hours later, the 6th Circuit refused to hear a second federal appeal challenging Tennessee’s newly revised lethal injection procedures. In that appeal to the full court, Workman’s lawyers detail what they believe are the many deficiencies with the lethal injection procedures, such as the use of drugs that can cause agonizing pain and the lack of proper medical training among executioners. As Workman remained on “death watch” in Riverbend Maximum Security Prison Tuesday night, his lawyers appealed both matters to the U.S. Supreme Court, but to no avail.

Without explanation, on Tuesday morning the 6th U.S. Circuit Court of Appeals refused to consider Workman’s appeal regarding new evidence, which his lawyers say was withheld by the prosecution for years and could prove his innocence. Several hours later, the 6th Circuit refused to hear a second federal appeal challenging Tennessee’s newly revised lethal injection procedures. In that appeal to the full court, Workman’s lawyers detail what they believe are the many deficiencies with the lethal injection procedures, such as the use of drugs that can cause agonizing pain and the lack of proper medical training among executioners. As Workman remained on “death watch” in Riverbend Maximum Security Prison Tuesday night, his lawyers were appealing both matters to the U.S. Supreme Court.

When Gov. Phil Bredesen imposed a 90-day moratorium on executions in February, he called for the revision of what he referred to at the time as “sloppy” and “ridiculous” death penalty procedures that were “full of deficiencies.” Three months later Bredesen approved the new procedures just hours after receiving them and lifted the execution ban. But Correction Department documents, which were obtained by the Scene in a lawsuit against the Bredesen administration, show the committee that revised the execution procedures was confused over the crucial issue of the amount of anesthetic needed to adequately sedate an inmate. In one email, Assistant Correction Commissioner Gayle Ray describes the amount of anesthetic as “iffy” and writes, “I think it makes sense.” Lawyers for Workman argue the committee actually made no meaningful changes, and that the state’s means of death by lethal injection remain unconstitutional. One federal judge, who was overturned, agreed that the risk of Workman suffering “excessive pain” was high. Paradoxically, lawyers for the state and at least two federal appellate judges agree no substantial changes were made to the protocols. But they say that means Workman should have raised concerns about lethal injection much sooner, and that his appeals should therefore be rejected. Asked Tuesday whether Bredesen was aware of the post-conviction evidence in Workman’s case, and his challenge of the lethal injection procedures, the governor’s spokeswoman Lydia Lenker responded via email: “As is the case with all pending executions, the governor’s legal counsel keeps him abreast of the significant issues and developments. The issues you are raising have been appropriately raised and reviewed within the court system.” The Rev. Joe Ingle, who spent 17 years as spiritual advisor to Workman, visited the condemned man Tuesday evening to pray. “Philip Workman’s moral character is not in question,” Ingle says. “What’s in question is the moral character of the state of Tennessee.” A few hours later, as Workman was strapped to a gurney inside the death chamber, he offered one more prayer: “I commend my spirit into your hands Lord Jesus Christ.” Workman was convicted of capital murder and sentenced to death in 1982 for the shooting of Memphis police Lt. Ronald Oliver after robbing a Wendy’s restaurant while strung out on cocaine. Years after his conviction, however, a new lawyer appointed to represent Workman in post-conviction proceedings uncovered evidence suggesting his client did not fire the bullet that killed the officer, but that the victim instead was mistakenly killed by another police officer. Since then defense lawyers have worked to unravel the state’s case against Workman, claiming police framed their client to cover up an awful mistake. The prosecution’s star witness, who testified at trial that he saw Workman shoot Oliver, later recanted, saying he made up the story to earn reward money. He also claims police coached him on what to say, and warned him to stick to his story. Subsequent ballistics evidence (which was not pursued by Workman’s trial lawyers) also suggests that the bullet that hit Lt. Oliver almost certainly did not come from Workman’s gun, but rather from the gun of a fellow officer. In granting a 2001 stay of execution, Former Tennessee Supreme Court Justice Frank Drowota determined, “If [Workman] did not fire that shot, he is not guilty of the crime for which he is scheduled to be put to death.” A subsequent hearing in the same Shelby County courtroom where he was first convicted, however, did not spare his life and a new execution date was set. Almost immediately after Gov. Bredesen lifted the moratorium on May 2, Workman’s lawyers filed a motion in U.S. District Court in Nashville seeking a restraining order that would temporarily delay their client’s execution, allowing for a few more days to review the new procedures. U.S. District Court Judge Todd Campbell granted the motion, stating the evidence indicates Workman probably would be successful in proving the new lethal injection procedure “creates a foreseeable and likely unnecessary risk” that he will suffer excessive pain when he is executed, “especially given that there is no procedure for monitoring the plaintiff’s level of consciousness during the process.” Campbell further states that the harm of postponing the execution until a full review can be completed does not outweigh the obvious harm to Workman if the lethal injection is carried out as scheduled: “The public has an interest, as evidenced by defendant Bredesen’s decision to review the execution protocol, in assuring that the lethal injection protocol for Tennessee is constitutional.” But in a 2-1 opinion divided among party lines (two Republicans to one Democrat), a three-judge panel of the 6th Circuit lifted the temporary restraining order on Monday and reinstituted the scheduled execution date. In his dissent Judge R. Guy Cole Jr. states it is the first time the 6th Circuit has vacated a temporary restraining order issued by a federal judge in a capital case, and that the appellate court doesn’t even have the authority to review the order. The majority disagrees, however, and in a lengthy opinion writes, “This dispute arises from a 25-year-old capital sentence, and the district court’s order, if upheld, would be Workman’s sixth stay of an execution date set by the state over the last seven years,” adding that the time for punishment has come. The two judges further state, “At no point until last Friday, May 4, 2007, did Workman challenge the state’s method of execution, even though the components of the procedure that Workman challenges today have been in existence in the main since 1998.” The majority commends the committee charged with revising the procedures, pointing out that the group met 19 times from February through April 2007 and held a public hearing in April before issuing its findings. “Everything, indeed, the state has done in reviewing and revising the procedure shows that it is trying to prevent Workman from suffering any pain during his execution.” The committee chose to stick with the three-drug cocktail introduced in Tennessee in 1998, a protocol used by 29 other jurisdictions, including the federal government. Although two variations were considered—including one that would have eliminated the much-criticized paralyzing agent involved—the committee determined that might cause involuntary movements during the execution, leading witnesses to believe the inmate is conscious. Although the committee acknowledges there is the possibility of error that may cause the inmate to feel brief pain, they say that chances of that happening are remote. The creator of the three-drug lethal injection cocktail, however, has raised concerns during recent media interviews, saying “it may be time to change it” and “it should be re-examined.” Also, lethal injections currently are on hold in 10 states, as well as in the federal justice system, while legal challenges and questions over its constitutionality are settled. The first of the three chemicals administered during lethal injection is sodium pentothal, a barbiturate used to make the inmate unconscious. Some experts in the field of anesthesiology have raised concerns that this type of drug is not intended to induce long-term unconsciousness, which means it might wear off during subsequent injections, causing excruciating pain during the execution. The Scene filed a lawsuit to force the state to make public documents pertaining to the 90-day review of execution procedures. In the documents were several emails that reveal confusion over the amount of this chemical needed to properly anesthetize an inmate. A March 21 email from committee member Gayle Ray to Julian Davis, executive assistant to Correction Commissioner George Little, states: “I blended things together. I think it makes sense. The only thing I was iffy about were the amount of the CCs in the sodium pentothal procedure. [The warden’s] instructions were for mixing a smaller amount and I want to be sure what it should be so I left question marks there.” In a March 23 email to Warden Ricky Bell, Ray writes, “I had to guess at a few things so Ricky, please have your consultant fill in the blanks or correct anything I got wrong.” The second chemical in the cocktail, pancuronium bromide, is a paralyzing agent that even veterinarians are prohibited from using to euthanize animals. This substance “serves no legitimate medical purpose during execution, and it will, with certainty, cause great suffering if administered to an inadequately anesthetized person,” says Dr. Mark Heath, a professor of anesthesiology at Columbia University who submitted a 24-page affidavit to the court last week relaying his concerns with Tennessee’s lethal injection protocols. This chemical paralyzes all voluntary muscles, including the diaphragm, but does not affect sensation and consciousness. To anyone viewing the execution, it would appear the inmate had peacefully drifted off to sleep, when in fact he might be experiencing intense pain and asphyxiation. The third and final chemical used, potassium chloride, causes cardiac arrest. The use of this poison (which can be found in fertilizer and road salt) would be “unconscionable and barbaric” if used without ensuring the person is unconscious, Heath writes in his affidavit, before concluding that the state has “created a revised execution protocol that does little to nothing to assure they will reliably achieve humane executions by lethal injection.” “Tennessee’s flawed lethal injection protocol is an extension of the flaws in Philip Workman’s case,” says Brad MacLean, a Nashville-based death penalty lawyer. “The state’s protocol continues the ‘cover up’ by using [pancuronium bromide] to hide the effects of the lethal injection chemicals.” Because the revision of lethal injection protocols in Tennessee was conducted predominately behind closed doors, Workman’s lawyers say it’s been difficult to determine which experts might have advised the state. The one doctor they were able to identify is Dr. Mark Dershwitz, an anesthesiologist with the University of Massachusetts. Just last year a federal judge in Ohio questioned the opinions of Dershwitz on lethal injection, stating that ample evidence calls his views into question. In an interview with the Scene last week, Dershwitz acknowledged having participated in a question-and-answer session via conference call with the committee revising Tennessee’s procedures. As far as his views on the three-drug cocktail, Dershwitz says definitively, “If the right drugs are given in the right order, at the right dose, through a working IV, then the inmate cannot suffer.”

 

In an interview with the Scene last week, Dershwitz acknowledged having participated in a question-and-answer session via conference call with the committee revising Tennessee’s procedures. As far as his views on the three-drug cocktail, Dershwitz says definitively, “If the right drugs are given in the right order, at the right dose, through a working IV, then the inmate cannot suffer.”