Arizona attorney fights for humane deaths or none at all

At times, the federal public defender Dale Baich is brought into a death-penalty eligible murder case at its earliest stages. His job is to describe death row to the accused.

Baich describes the small cells and the solitary existence that begins to weigh on the convicted. How the only human contact comes when corrections officers reach into the cell from the outside to attach restraints. How, over time, death-row inmates don't know what they look like because they don't see a mirror.

Baich offers the unsparing glimpse so that the defendant can properly weigh whether to accept a plea deal and a lengthy but time-certain prison sentence, or go to court and risk capital punishment.

Many take the plea deal.

Those who don't and are convicted, become his clients.

As they wait out the years after sentencing, it will be Baich who will try to keep them out of the death chamber. Or, at least, make sure their execution is as humane as possible.

Baich has handled death-penalty cases since 1988 and worked out of the Phoenix federal public defender's office since 1996. Sometimes he's been successful. Sometimes his clients die.

Baich's latest efforts have focused not just on Arizona cases but on Oklahoma, where a group of death-row inmates has challenged the way that state plans to execute them.

The essential legal question in the case: Do the drugs that Oklahoma and other states use for lethal injection produce a tranquil and peaceful death? Or do the inmates actually lie fully awake and aware as lethal drugs burn through their bodies and stop their hearts and lungs, making the last few minutes of their lives a silent torture?

At the end of April, public defenders, using arguments Baich helped craft, stood before the justices of the U.S. Supreme Court and argued that the drug Oklahoma and Arizona have used does not sufficiently knock out the condemned — and that the resulting execution is unconstitutionally cruel.

The high court's ruling, expected in June, could change the way lethal injection is carried out in the 31 states that use capital punishment, forcing states to seek out some other combination of drugs even as pharmaceutical options for lethal injection are dwindling.

Arizona has put further executions on hold until judges rule on the legality of its execution method.

Cases like the one in Oklahoma have made Baich one of the country's leading legal opponents of the death penalty; in almost every setting, his arguments aim to change it, stall it or prevent it from happening.

But Baich doesn't describe himself as a death-penalty opponent. Indeed, when asked his opinion about the very existence of capital punishment, he demurs.

To him, the work is not about ideological victory.

"I don't know if victory is the right word," he said, about a possible high-court ruling in his clients' favor. "I think it's an opportunity for the courts to take a close look at what is really going on with this process."

But he does know that raising these questions can cause the public and politicians to re-examine capital punishment as a judicial policy. Last week, Nebraska's legislature voted to end the practice.

Other states have redoubled their efforts to preserve it. Utah voted on an alternative in case it cannot carry out lethal injections: It will bring back the firing squad.

"In the end," Baich said, "what we've done is ensure that clients who are executed by lethal injection are not going to experience pain and suffering."

Charting a course

Baich, 58, grew up in a suburb of Cleveland. His mother still lives in the house he grew up in.

He grew up a baseball fan, preferring the slow, measured pace of the game. As he matured, he became the type of fan who studies the way outfielders are positioned, or watches the signals the managers send in from the dugout. It's a long game with a lot of particulars to note.

At law school, Baich became a fan of the blues. The college radio station had a blues show on during the overnight hours, and the music imprinted on his brain as he studied.

He opened his own office in Cleveland. One of his early cases showed him that courts could be used to create change.

An environmental group wanted to stop the Perry Nuclear Power Plant on the shore of Lake Erie. By the time the case came to Baich, the plant had been given clearance by the federal Nuclear Regulatory Commission.

Baich was concerned about the plant's ability to withstand an earthquake, especially after a temblor hit 10 miles away. Baich's challenge was in getting past the high bar set by the regulations, which were written by industry insiders specifically to stop challenges, he said.

"When people in the '60s were out demonstrating and chaining themselves to the fences to stop the (nuclear) plants, although that was important, what people should have also been doing was getting involved in the regulatory process," he said.

Baich did the unglamorous work of wading through the minutiae of regulations and nuclear-power licensing until he found an argument that convinced a federal court to halt the plant in 1987. It opened months later, but Baich had slowed the process enough to feel the plant had done more than just paper over the earthquake problem.

Baich was offered a job in the public defender's office in Ohio. He represented juveniles in the criminal system. Then, in 1988, he took a job with the state public defender's office, specializing in death-penalty cases.

He said the job also appealed to an innate sense of fairness for people caught up in a bureaucratic system.

"It's so wrong when someone gets screwed and there's no one standing with him or her and advocating for them," Baich said. In 1996, he was offered the job in Phoenix.

That was the same year the city demolished Cleveland Stadium. Baich was among the fans who took the offer to buy seats. A truck showed up outside his Central Avenue office with four seats covered in rust and bird droppings. Baich had them steam cleaned. Take away the bird poop, he said, but leave the rust. The row of four seats has moved with him to his office near Seventh Avenue and Van Buren Street.

On death row, he would meet clients who were real-life versions of the blues songs he heard in college. He would hear tales of poverty, abuse, alcohol and suffering.

Those stories would become one path to keeping an accused out of the execution chamber. Baich could argue they had an untreated mental illness, or an abusive childhood. He could also argue about how individual clients had been done wrong: procedural mistakes by the police or the courts, shoddy work by other attorneys.

Those arguments were unique to individual cases. But there was another set of arguments with bigger ramifications. Baich began to look at the procedures states used to execute prisoners. A ruling changing those procedures could have an effect beyond any single inmate.

To execution witnesses, there seemed little wrong with lethal injection. Inmates appeared to peacefully go to sleep.

It certainly appeared that way to Baich. The first time he witnessed a lethal injection, in 2010, it struck him as much more serene than the death by electric chair he saw in 1996 in Nebraska.

That state was the only one at the time that had not adopted lethal injection. Baich said watching that execution, his first, was "surreal."

He said the inmate, John Joubert, convicted of killing three children, bolted up from his chair, straining against the straps. His prison suit puffed with air, Baich said, and steam appeared to come out of one of his pant legs. He was given three jolts, the standard number at the time. Baich said he watched Joubert's skin color change from white to pink to red to blue and then gray.

By contrast, the October 2010 execution of Jeffrey Landrigan in Arizona appeared peaceful. When the curtain was pulled back and witnesses could see into the execution chamber, Landrigan's body was covered with a sheet. Only his head was exposed.

Landrigan said his final words, "Boomer, Sooner," and then, Baich said, the Oklahoma native closed his eyes and appeared to go to sleep.

Only later would Baich find out that the state imported drugs from another country to execute Landrigan, a move that a federal judge said showed a callous indifference to human life.

Which is also essentially what a judge thought of Landrigan when she sentenced him to death for the 1989 stabbing and strangulation of a man.

'A valuable job'

In Arizona, Baich has been assigned a rogue's gallery. The crimes of the convicted are a cascade of cruelty.

Randy Greenawalt was accused of killing a couple in their 20s and their infant son; Kevin Roscoe was accused of abducting, raping and killing a 7-year-old girl who had gone out searching for her runaway cat; Michael Poland was accused of killing two armored-car guards during a robbery, dumping their bodies in Lake Mead.

The Poland case shows some of the novel arguments Baich makes on behalf of his clients.

According to news stories, Baich argued that Arizona could not execute Poland until he first completed a 100-year federal prison sentence for the robbery and kidnapping. In the weeks before the scheduled execution, Baich argued that Poland's mental condition had deteriorated and he was too delusional to be killed.

Poland believed, Baich said, that he had superpowers that would allow him to survive the execution. Prosecutors said that was an act.

Mel McDonald, who prosecuted the Poland case, said death was deserved.

"Michael was scum," he said. "He was faking the mental thing right up to the end."

Still, McDonald, who has also been a judge and a defense attorney, said Baich played a necessary role in advocating for Poland, as frustrating as he found the argument.

"He does a valuable job," he said. "I want people like Dale to be there all the way through the process to be protecting the rights of the people involved."

Baich said he was certain Poland was not faking his delusion. As he left his cell on his final visit, Poland was casually using the restroom and told Baich he'd see him later.

"I was the last friendly face he was going to see," Baich said.

Poland's final words: "I'd like to know if you're going to bring me lunch afterward. I'm really hungry."

Legal challenges

McDonald had different feelings about Poland's brother, Patrick, who was convicted of the same crime.

Though he prosecuted him, McDonald said Patrick Poland helped authorities patch up holes in the case and expressed remorse. McDonald watched his execution by lethal injection and thought the man suffered. The vision stuck with him.

"I don't care who you are," McDonald said. "To see somebody suffer is bad."

The lethal injection protocol was developed in Oklahoma, according to a brief filed in the Supreme Court case by the Louis Stein Center. Doctors with the state medical association would not help with the effort, so the state medical examiner devised the procedure, the brief says.

The formulation was essentially the same that other states, including Arizona, would adopt, according to the legal brief. First, the inmate would be given a fast-acting sedative that would render him or her unconscious. Then, the inmate would receive the two lethal drugs: one that would paralyze their muscles, including the diaphragm, and another one that would stop the heart.

In 2007, Baich began filing legal challenges questioning the qualifications of those administering the drugs and the manner in which the drugs were injected. He also argued that a doctor needed to be certain that a prisoner was unconscious before the lethal drugs were administered.

Baich said his goal is to make sure the government follows its own rules, including the one that says it cannot inflict a cruel punishment.

"If we're going to do it," he said, "it has to be done in a way where the prisoner doesn't suffer or experience pain."

Legal challenges to lethal injection — including a case that made it to the U.S. Supreme Court — were succeeding in making the process more transparent. But the challenges didn't appear to be on track to stop any executions.

At one point, Baich withdrew a federal court challenge against Arizona's lethal injection method because he said the state had addressed his concerns. The state agreed with Baich that witnesses should be able to watch IV lines being administered and that the state needed to reveal sources of the chemicals.

Then, something happened that Baich neither planned nor expected. Arizona began running out of drugs.

Arizona had been using a drug called thiopental to knock inmates out. But it ran short.

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A British anti-death-penalty group, Reprieve, started pressuring drug manufacturers, especially those in Europe, to stop their drugs from being used in executions. Hospira, the one company that made thiopental in the United States, planned to move the manufacturing of the drug to Italy, but that government said it would hold Hospira liable should the drug end up being used in an execution. Hospira announced in January 2011 that it would stop making the drug.

By then, the drug had already become scarce. Ohio had already announced it didn't have any to carry out executions. And Arizona obtained a batch of thiopental from a storefront pharmacy in Britain for the October 2010 execution of the condemned murderer, Landrigan.

A federal judge would later rule that the state, in league with the federal Food and Drug Administration, improperly sidestepped regulations in importing the drug. The judge's ruling said state and federal officials showed "seemingly callous indifference" to the condemned.

Arizona switched to a new knockout drug: pentobarbital. But the only manufacturer of that drug also blocked sales to corrections departments that would use it for executions. On its website, Reprieve lists statements from a dozen pharmaceutical companies pledging to block sale of their drugs for executions.

Arizona announced it would move to midazolam, a drug said to be like Valium. Oklahoma also adopted that drug as its first of the three administered during lethal injection. That drug is also made by Hospira. In a statement on its website, the company said it objects to its products being used in executions, but said it could do little to stop a prison from obtaining its drugs through the "gray market."

In April 2014, Oklahoma executed a prisoner, Clayton Lockett, using midazolam. Witnesses said Lockett was gasping, convulsing and calling out. Oklahoma officials tried stopping the execution. But Lockett died of a heart attack shortly thereafter.

The July execution of Joseph Rudolph Wood would be the first in Arizona using midazolam.

Baich was in the last of the three tiered rows of witnesses just outside the execution chamber. He said that after about a dozen minutes, it appeared Wood was dead. Then, Wood started to gasp. Baich couldn't hear him, but could see him. There appeared to be a pattern, he said. A few shallow gasps, then a deeper one.

Baich began writing what he was seeing using the pencil and pad of paper that corrections officials provided. Electronic devices and pens weren't allowed in the witness area.

He gave the note to an attorney in the room. It said to call the legal defender's office and report what he had seen. The note said the attorneys there would know what to do.

Within an hour, an emergency motion was filed with the 9th U.S. Circuit Court of Appeals. Wood would die before the judge could rule.

Wood's execution would take another hour. Every few minutes, Baich said, a medical person would walk toward Wood and examine him. Then, a voice over the loudspeaker would announce to the witnesses that the prisoner was still sedated. Baich said that, as a lawyer, he has no factual basis to dispute that claim. He said he didn't want to share his layman's opinion.

In a news conference following the execution, the television news anchor Troy Hayden, of KSAZ-TV, said Wood looked like a fish on land gasping for air.

An autopsy would later show that Wood was given 15 times the drug dose recommended by state prison procedures. It was information that Baich did not know while witnessing the execution. In a motion filed with the federal court in Arizona, Baich is urging prison officials to let witnesses see the plunger administering the lethal drugs.

In June 2014, a group of 21 death-row inmates challenged Oklahoma's lethal-injection procedure. Four of those filed for a special injunction as they faced imminent execution. One of those men was executed before the U.S. Supreme Court agreed to take the case.

The case is Glossip vs. Gross. Gross refers to Kevin Gross, the chairman of the Oklahoma Board of Corrections. Glossip refers to Richard Glossip, who was convicted of ordering the beating death of the owner of a motel he managed.

Another defendant in the case was convicted of stabbing a cafeteria employee in prison with a shank. Another was convicted of killing his 9-month-old daughter by pushing her legs toward her head until her spine snapped.

Baich knows that the brutal nature of their crimes can make death-row inmates seem like monsters.

But, he said, the gap in time between the crime and the execution ends up creating a different human being.

The mentally ill get treatment in prison. So do the addicted.

"What we see is the humanity coming out in that person," Baich said. "I don't believe in the idea that people are evil."

Baich said that the death-row inmates he represents fit a typical profile. He knows that, by and large, he is not dealing with someone raised in a stable household with good educational and career opportunities. It is probably someone with undiagnosed mental illness and a history of childhood trauma or abuse.

"Brain damage, mental illness, combined with a bad environment and drugs," he said, "it just makes sense that someone is going to end up in a bad situation."

High court to decide

Baich has been a spectator at the U.S. Supreme Court for five of his cases. But he hasn't argued any himself, thinking it best for others to have the honors.

In Glossip, he said he figured he managed the complexities and details of the case, leaving the job of arguing to Robin Konrad, an attorney in his Phoenix office who had done nothing but prepare to present the case since January.

Baich took his place in the narrow seats in the spectators' gallery. He wasn't nervous. He watched the arguments like a learned baseball fan — studying the complexities of the attorneys' arguments and how the justices seemed to position themselves.

Justice Antonin Scalia brought up the crime of one of the defendants. He was already serving a life sentence for murder, Scalia said, when he stabbed a prison worker to death. He did not make an immediate legal point about the crime. But the image his words created were a stark contrast to the other justices' just-completed questions about a humane or painless way to execute the inmates.

Justice Samuel Alito blamed the dilemma on death-penalty abolitionists who have pressed companies to stop importing drugs that could kill painlessly. He asked if it was appropriate for judges "to countenance what amounts to a guerrilla war against the death penalty."

Justice Sonia Sotomayor said states should not feel compelled to use a series of drugs that have unanswered questions.

"There are other ways to kill people, regrettably," she said.

She also suggested that Oklahoma might have been disingenuous in its briefs to the court.

Justice Elena Kagan said that a conscious but paralyzed person might feel the pain of the drugs, which she said would make them feel is if they were being burned from the inside. She gave a hypothetical scenario involving burning someone at the stake as a comparison.

"So suppose that we said we're going to burn you at the stake, but before we do, we're going to use an anesthetic of completely unknown properties and unknown effects," she said. "Maybe you won't feel it. Maybe you will. We just can't tell. And, you think that would be OK?"

Should the court decide that midazolam is an inadequate drug, or make a broader pronouncement, it could create a moratorium on lethal injections.

One state, Utah, has already passed a law saying it would go back to the firing squad should lethal-injection drugs not be available. Utah was one of two states that had previously used the firing squad.

"The real question is: Does the public have the stomach for going back to the firing squad, to the electric chair, to the gas chamber?" Baich asked.

If Utah does institute the firing squad, Baich, whose office has been assigned to handle some cases out of that state, would begin preparing arguments against that method.

"We've not yet had those discussions," he said. But he can list off problems that have occurred with firing squads in the past. Suppose marksmen missed the target, for example, causing the inmate to suffer a lingering death?

While the public may view Supreme Court cases as solving broad ideological questions, Baich said he focuses on making the best case for his individual client. Still, he said, if the result of his work is a halt to capital punishment, he said he won't be disappointed.

"The last 40 years have shown us," he said, "there are problems with the death penalty."