Saturday, December 10, 2022

Justice Breyer's Errors in Death Penalty Assessment

sent 12/7/2022 and amended 5/25/2024

To: Justice Breyer and his assistant, Professor Emma Reilly
 
As of 5/25/2024, I have amended:
 

Justice Breyer's Errors in Death Penalty Assessment

 
Original, below.
 
Dudley Sharp
 

From: sharpjfa@aol.com
To: ereilly@law.harvard.edu, sbreyer@law.harvard.edu
Sent: 12/7/2022 9:49:10 AM Central Standard Time
Subject: Sorry, sent a draft - Final Version - Justice Breyer: His Errors in Death Penalty Assessment

Final Version - amended 5/25/2024, in BOLD

 To: Justice Stephen Breyer and assistant Emma Reilly
 
BCC: SCOTUSBlog
 
RE: Will Jackson be the Supreme Court’s next great opponent of capital punishment? by James Romoseron, SCOTUSBlog,  Dec 5, 2022
 
Subject: Breyer: Not So Great
 
from Dudley Sharp, independent researcher, death penalty expert, former opponent, 832-439-2113, CV at bottom
 
Justice Breyer: His Errors in Death Penalty Assessment
 
Retired US Supreme Court Justice Stephen Breyer has three complaints about the death penalty, which has him questioning the constitutionality of the sanction.
 
(1) the "innocent"/"exonerated" ("IE") from death row, the high number which shows how poorly our justice system works and puts innocents at risk of execution;
2) as arbitrary, with factors like race, wealth, and geography, in the modern scarcity of cases.
3) exceedingly long delays, by itself, as well as how lengthy appeals time has a negative effect on deterrence.
 
Breyer's primary problem appears to be that his clerks 1) might have been death penalty opponents and/or 2) he and they forgot thorough discovery . . . known, academically, as research, with fact checking, vetting and critical thinking, of that research, throughout (collectively "RFVC"), as detailed:
 
Using RFVC, we find
 
1) The "innocent"/"exonerated" (IE):
 
      a) It has been well known, since about 1998, that the IE has been a major and obvious fraud by death penalty opponents (1), a fraud/error adopted by many legal and other academic scholars (1). This is not in dispute, by those who employ RFVC (1)
 
These well known "innocent"/"exonerated" frauds are in the 71-83% range (1), depending upon the review (1), which translates into a 0.3-0.5% of proven innocents, discovered and released from death row (1). Justice Scalia found it to be 0.5% (1).
 
Death penalty opponents, quite simply, redefined both "innocent" and "exonerated", as if they had redefined lie as truth (1) and stuffed a bunch of undeserving cases into those creative definitions. Easy to find with RFVC (1) and not in dispute.
 
In the modern, death penalty era (1973 forward, under Gregg, 1976), after 50 years of intense investigations, we may have found a 0.4% "factually" innocent death row conviction rate, with all of those being released, very likely, the most accurate rate within guilty findings (99.6%) and appellate relief (100%) . . .  correcting Breyer.
 
There is a reason why, most, experienced observers say that the death penalty has super due process . . . it does.
 
       b) Bryer avoids the primary innocence horrors, which is that, since 1973:
 
Some 20,000 ADDITIONAL innocents have been murdered by those KNOWN murderers that we have allowed to murder, again - recidivist murderers;
Some 500,000 ADDITIONAL innocents have been murdered by those KNOWN criminals that we have allowed to harm, again - recidivist criminals and;
Likely, 3.5 million ADDITIONAL innocents have been raped, otherwise assaulted, car jacked, kidnapped and/or robbed by those KNOWN criminals that we have allowed to harm again - recidivist criminals.

No "Innocence Projects" for them. Why?

We might have proof of innocents executed, as recently as 1915.
 
      c)  The death penalty/executions are a better protector of actual innocents, in four ways, than is a life sentence (1a). Three of those are unchallenged, with the fourth much more likely than not.
 
2) Arbitrary, with factors like race, wealth, and geography, in the modern scarcity of cases.
 
Reply
a) The death penalty is the definition of "non-arbitrary" as
1) it represents the fewest cases in criminal law;
2)  out of 900,000 murders, since 1973, it has been applied to only 9500 cases. Using 12.5% of murderers being death penalty eligible, that would mean that nearly 12% of death penalty cases receive the death penalty. Are there any other violent crimes that reach that plateau of getting a maximum sentence?;
3) the best detectives and the best prosecutors, in all jurisdictions, are called upon to investigate and prosecute these cases;
4), almost exclusively, with the requirement to have two prosecutors and two defense counsel, per case;
5) all knowledgeable persons know that the death penalty has the greatest of due process protections, at all stages - investigation, pre-trial, trial, within appeals and at the executive branch for clemency, commutation, stay and/or pardon;
6) In most jurisdictions, the 12 member jury will have four issues to find, unanimously, against the defendant/guilty party, in order to give a death sentence - 48-0, must be the vote, for a death sentence. Only one vote, for not guilty and/or for the other three issues, means that the defendant/guilty party will receive a life sentence or will go free, with a not guilty, which means 1 vote overwhelms the 47 vote, with a guilty finding, - 2% prevails over 98% - unchallenged, as the most anti-democratic vote in a democratic republic. 48-0, for the death penalty, is, clearly, as non-arbitrary as it gets. 1 overwhelming 47, for a life sentence, is, clearly, as arbitrary as it gets. 
7) In death penalty trials, there are, only, two possible sentences, if found guilty - a death sentence or life without parole. In arguably, our second worst cases, under law, rape, a guilty verdict may result in a sentence of probation to life. Which is arbitrary? Arguably, even probation to life, may not be arbitrary, if one considers all the many factors, that jurors evaluate, when making such decisions.
8) Beyer's complaint, about long stays on death row, is another rejection of the sanction being arbitrary, as the death penalty gets the greatest scrutiny, in appeals. 
 9) "Guided discretion" is the most important legal force within the Gregg vs Georgia opinion. That is what has made the death penalty the least arbitrary, of all criminal sanctions, as guided discretion would.

None of those are in dispute.
 
b)  Race and arbitrary
 
"White murderers are twice as likely to be executed as are black murderers (2)."

"From 1977-2012, white death row murderers have been executed at a rate 41% higher than are black death row murderers, 19.3% vs 13.7%, respectively (2)."

"There is no race of the offender / victim effect at either the decision to advance a case to penalty hearing or the decision to sentence a defendant to death given a penalty hearing. (2)."

For the White–Black comparisons, the Black level is 12.7 times greater than the White level for homicide, 15.6 times greater for robbery, 6.7 times greater for rape, and 4.5 times greater for aggravated assault (2).

As robbery/murder and rape/murder are, by far, the most common death penalty eligible murders, the multiples may be even greater.
White victims are the vast majority in death penalty cases because whites are the vast majority of victims in death penalty crimes (2).
 
c) Wealth and arbitrary

Reply: "99.8% of poor murderers have avoided execution (3)."

"It is, solely, dependent upon one's definitions of "wealthy" and "poor", as to whether wealthy murderers are any more or less likely than 0.2% to be executed, based upon the vast minority of capital murders committed by the rich, as compared to the vast majority committed by the poor. (3)" 

In addition, robbery/murders are, by far the most numerous death penalty cases, with the "wealthy" being the least likely to commit those.
 
Wealthy murderers are able to hire better counsel, but, the above, still prevails. Hardly unconstitutional, as such exists within in all crimes, wherein wealthy criminals exist.
 
Easy with RFVC.
 
d) Geography and arbitrary

In 2002, the 75 largest counties had 51% of murders and non-negligent manslaughters, 61% of robberies and 36% of forcible rapes, nationally (4), which is in the ballpark of 60-70% of what we know as capital, death penalty eligible murders, inclusive of robbery/murders, rape/murders, police murders, multiple and serial murders, in death penalty eligible counties.

75 is nearly 2.4% of all counties, both death penalty eligible and not.

In other words, we should expect that 2% of US counties would account for 51% of the executions. 
 
The three primary reasons for executions being limited to so few counties are these: 1) Very few of the counties will have the majority of capital murders, primarily because they will contain, by far, the largest populations (4); 2) Judges are responsible for grossly uneven executions (4) and 3) prosecutors make the choices to seek or reject the death penalty and they will always vary on support or rejection of the death penalty, prosecutorial discretion  . . . all of which will affect the number of death sentences and executions, as we would expect.
 
Easy with RFVC.
 
3) Exceedingly long delays and deterrence
 
a) Judges and long delays
 
Since 1976, Virginia has executed 113 murderers, within 7 years of appeals, on average (4).
 
Nationally, in the first 5 years of double digit executions, in the 1980s, we executed within 6.6 years, on average (4). Today, we are at 20 years.
 
It appears, as detailed (4), that other judges are doing all they can to destroy the death penalty (4), by failing to be the responsible managers that they should be (4).
 
It is astounding that Breyer and all other SCOTUS justices have not held lower judges accountable. They should.
 
b)  Deterrence and appeals time
 
The vast majority of the findings, within the recent 24 studies finding for death penalty/execution deterrence, is that it is the execution, itself, which causes the deterrent effect (1a, 4). 
 
That is no surprise. It is unlikely that potential murderers pay any attention to lengthy appeals, but make note of actual executions.

In Closing

Breyer is either a dogmatic death penalty opponent, who could care less about the above, or he is irresponsible and failed discovery, research, fact checking vetting and critical thinking, or both.

It really doesn't matter. Does it? 

Added 5/25/2024: Yes, it matters very much.

Can the judge forget discovery, fact checking, vetting and critical thinking, accidently?

Of course not.

Justice Breyer, should you be tempted to use anti-death penalty nonsense in the future, here is some more RFVC, at bottom.
======
 
FN
 
1)  The Death Row "Exonerated"/"Innocent" Frauds 
 71-83% Error Rate in Death Row "Innocent" Claims, Well Known Since 2000 

1a) The Death Penalty: Saving More Innocent Lives
http://prodpinnc.blogspot.com/2013/10/the-death-penalty-do-innocents-matter.html
and
 
2)  RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
 
3) Is There Class Disparity with Executions?
 
4)  Geography and death sentences, reviewed, herein
 
Judges Responsible For Grossly Uneven Executions
https://prodpinnc.blogspot.com/2013/11/judges-responsible-for-grossly-uneven.html 
and

Media Disaster: Death Penalty: Courts, states put death penalty on life support

and
Judges as Jackasses

======
600+ pro death penalty quotes from murder victim's families &
3300+ from some of the greatest thinkers in history
http://prodpquotes.info/ 
======
 
 
Research, w/sources, w/fact checking/vetting & critical thinking, as required of anyone within a public policy debate and which rebut all anti-death penalty claims.
 
Most will realize that the media has been using only anti-death penalty claims and , then, failed to fact check, vet, not use critical thinking, with that research, while avoiding all pro-death penalty research and experts. How do I know most will realize this? Because they wouldn't have seen any of this, prior:
 
1) The Death Penalty: Justice & Saving More Innocents
and
Students, Academics & Journalists: Death Penalty Research
(7 pro death penalty experts included)
======
 
Partial CV

Posted by at

Tuesday, October 18, 2022

Media Disaster: The Horrendous State of Media: Death Row Inmate Melissa Lucio & NPR's Houston Public Media's Ernie Manouse

Last update April 22, 2024

Media Disaster: The Horrendous State of Media: 
Death Row Inmate Melissa Lucio & NPR's Houston Public Media's Ernie Manouse

sent 5/25/2022, 6/10/2022, 10/18/2022, 4/22/2024
no response, no inquiry, no correction, no journalism
 
To: U of Houston (Journalism Dept.), The Cougar (UH student newspaper), Houston Public Media, etc.
 
and many others, below
 
Subject: The Horrendous State of Media: Death Row Inmate Melissa Lucio & Houston Public Media, NPR
 
RE: The three Melissa Lucio shows, Town Square, a Houston Public Media production, NPR, with Ernie Manouse, as Host
 
From: Dudley Sharp, independent researcher, death penalty expert, former opponent, 832-439-2113, CV at bottom

======
added April 6, 2024
Favorable evidence was withheld from Melissa Lucio during death penalty trial By Mark Reagan, myRGV, April 5, 2024

https://myrgv.com/local-news/2024/04/05/favorable-evidence-was-withheld-from-melissa-lucio-during-death-penalty-trial/ 

added April 16, 2024
"In a rare joint statement, the district attorney and the defense agreed that prosecutors withheld evidence that could point to a Rio Grande Valley woman’s innocence in the death of her toddler."
State district judge recommends overturning Melissa Lucio’s death sentence, BY WILLIAM MELHADO, Texas Tribune, APRIL 15, 2024
https://www.texastribune.org/2024/04/15/melissa-lucio-death-penalty-judge-overturn/

======

Added April 16, 2024: Withholding exculpatory evidence (above) is as bad as it gets. There are two possible outcomes: The Texas Court of Criminal Appeals will (1) overturn the conviction, finding that such evidence would have changed the outcome of the case, ordering the prosecutors to retry or release her; (2) not overturn the case, ruling that the exculpatory evidence would not have changed the outcome of the case. We'll have to wait and see.

All very important but does not excuse Manouse's/NPR's horrendous . . . 
 
Media Standards
 
Journalists might find that both sides of any public policy debate should be presented to the public, just as most of us should look at both sides of many issues, prior to reaching a conclusion.
 
Apparently, NPR's Ernie Manouse did not do that. Let's look at how irresponsible they are . . . or how intentional or both.
 
Maybe Not?
 
Much of the following was found within an appellate decision in the case, which I found within 10 seconds of searching (FN). Possibly, NPR might, even, consider doing the same. Or, likely . . .  maybe not.

The standard would be for NPR and Manouse to keep all of this from their readers, as has been the case, through April 22, 2024, nearly two years.
 
1) Melissa Lucio (ML), truly, confessed:
 
a) that ML, repeatedly, grabbed, twisted and squeezed Mariah's arm, routinely, finally, breaking it, as we should all know, as that condition existed
b) that ML, repeatedly, pulled Mariah's hair and pulled it out by its roots, as we should all know, as that condition existed.
c) that ML repeatedly, got mad and spanked and beat Mariah, from head to toe, day after day, creating 110 bruises, as we should all know, as that condition existed.

 

In addition:

 

d) ML stated that she was not close to Mariah because CPS removed Mariah from her home three weeks after she was born, consistent with the observation that ML was distant and not overly distressed and not even within arm's reach of the child much less trying to hold her, or trying to do anything to hold her, the day of Mariah's death, as would be common for an abusive parent, not out of character, as with a-c.

e) ML stated that she pinched Mariah's vagina. Certainly, not out of character (a-d), and

f) Mariah had bruised kidneys, a bruised spinal cord and bruised lungs & had cocaine in her system, at the time of her death. No surprise to anyone, knowing what we know (a-e). Correct?

g) five hours of interrogation is not, remotely extreme or "torture", an absurd description, given the life of ML, a long time drug addict, abusive men, and 12 children, with child protective services taking all ML's children away, twice or given any capital murder suspect, under any other conditions. The real issue is method, not time, as detailed. Ernie, think? Well, no.

h) ML's own medical witness stated that Mariah could have died by either a beating or a fall. The defense was maybe yes, maybe no. The prosecution was definitive. ML murdered Mariah.

i) given all that, and much more, it is, hardly, surprising that her jury, unanimously, found her guilty, beyond a reasonable doubt, of capital murder.

 

Mariah's tortured life ended at age two. Overwhelmingly, the three shows presented ML as the victim, a common anti-death penalty vision of murderers.

 

Ernie did not have any of that in his three day series. Zero. That is how bad it was and NPR is.

 

I have zero objection to ML's stay of execution and a review of the issues. It is SOP in death penalty cases, which have super due process.

 

j) Ernie, host of the HPM radio show, Town Square, became another ML defense counsel, stating that Mariah died because of a fall down the stairs. How does he know that? He doesn't, of course.

k) Filmmaker Sabrina Van Tassel's willful ignorance was presented. She stated that abusive parents, with multiple children, do not just abuse one child, She, simply, made it up. In fact, it is not, at all, uncommon for a parent to pick out one child for abuse There is an infamous case, in Houston, right now, that shows that.


Ernie? Fact checking and vetting? A responsibility of your profession and to your audience? Nope, not anymore.

 

Ernie had no clue and (or) didn't correct Van Tassel , showing how common it is for many journalists to, simply, accept falsehoods and pass them along to the public, showing how common and easy it is to fool the public, when there is no watchdog media, but, only, lapdogs, as we had here.

 

This is why and how we can have so many fraudulent "innocent" and "exonerated" claims (see para 2 and fn 1). Instead of uncovering them, the media pushes the falsehoods forward, as detailed (1) and which has all the markers, herein, with none, ever, questioned by Ernie.


There is no doubt.

 

Ernie stated that there was no evidence of child abuse, with Mariah. Truly foul.


Why, Ernie? Answer: Willful media compliance to the anti-death penalty narrative, a well known and basic journalistic response to such public frauds (1), unless Ernie and HPM have some other explanation. Well?

 

Will HPM or Ernie, now, research? Likely not. They will, likely, just consult with ML counsel or other anti-death penalty advocates and dismiss my review.

 

Standard.

 

2) The 187 exonerated from death row.
 
Complete utter fraud, as is well known, if one has fact checked, in the past twenty years (1). There is a 71-83% fraud/error rate in death row exoneration claims, as is well known and detailed (1). The Death Penalty (Dis) Information Center (DPIC) has, simply, redefined both "innocent" and "exonerated", as if they had redefined lie as truth, as they have admitted, freely, and it is not in dispute (1). The Innocence Project and the National Registry of Exonerations (NRE) have adopted much of those standards (1).
 
It is not as if the media does not care. Many in the media care, very much, to the point that they refuse to fact check/vet any anti-death penalty claims.
 
All, somehow, missing, from Ernie's show. Now, expected.
 
3) False Confessions
 
Falsely claiming false confessions is an anti-death penalty staple, as is well known (1).
 
That does not mean that false confessions are not a problem. They are. Reviewing confessions, pre-trial, in trial and within appeals is a common, expected and necessary practice. We, all, want it to be.
 
All left out of Ernie's three shows, as expected.
 
4) Gender/Ethnicity Bias and 5) Future Dangerousness
 
By Texas case law, future danger can be proven by the crimes, themselves, as is easy with ML's child abuse.
 
The race/ethnicity/gender of a defendant or convicted party cannot be used to imply or prove future danger. Future danger is based upon the history of the defendant/convicted party, as is well known.
 
It is absurd that folks are saying that gender and ethnic bias could be a reason for ML's death penalty. In 50 years, she is the first Hispanic women to be sent to death row, in Texas, which has zero history of such bias.
 
There is no gender nor ethnic bias, as detailed (2). It's just anti-death penalty nonsense, again.

NPR? Ok with that?
 
Our inherent, constant, prevailing and rational bias is against men, when dealing with violent crimes, as such reflects known reality:  About 90% of violent crimes are committed by men, as reflected in the prison population. Hispanic women make up a tiny percentage of  incarcerated violent prisoners. It appears, from my experience, that white violent females get, by far, the most media coverage, in Texas. Ernie, what's your take?
 
Ngozi Ndulue, DPIC, presented the standard anti-death penalty fraud of the McCleskey vs Kemp case (See McClesky, within Racism, fn 2). It is impossible to say if Ngozi did that intentionally or if she is just, astoundingly, willfully ignorant. 

Ask her, after you fact check. Well, neither of those will happen. 
 
All left out of Ernie's three shows. Surprise? No.
 
5) Jurors Changing Their Minds
 
13-14 years years after the trial, when jurors hear, only, one side of the story, provided by defense/appellate counsel, for the inmate, is anyone surprised that jurors question their guilty findings, just as they would, after hearing the three segments of a defense of Melissa Lucio, on Town Square? Of course not.
 
There is a reason that our court system has two opposing parties, prosecution and defense, with a neutral arbiter, the judge and neutral fact finders, judge or jury and why our journalists should rely upon, somewhat, similar ethical standards, within their profession.
 
Ernie did not mention any of that. NPR?
 
6) Is ML actually guilty or actually innocent?
 
I have no idea, because I have not researched the case, nearly, enough.
 
My guess is that no one at HPM will read all of this. Standard. NPR?

======
600+ pro death penalty quotes from murder victim's families &
3300+ from some of the greatest thinkers in history
http://prodpquotes.info/ 
====== 

FN
 
Do your own trial transcript and appellate review.
 
I have presented all of this, below, to HPM, for years.
 
1) The Death Row "Exonerated"/"Innocent" Frauds 
 71-83% Error Rate in Death Row "Innocent" Claims, Well Known Since 2000
 
2) RACE & THE DEATH PENALTY: A REBUTTAL TO THE RACISM CLAIMS
 
WOMEN & THE DEATH PENALTY:
ARE WOMEN OVER REPRESENTED ON DEATH ROW?
http://prodpinnc.blogspot.com/2013/02/women-death-penalty-are-women-over.html

Is There Class Disparity with Executions?
 
EXTRA     I have been a guest, along with Sister Prejean, with HPM
 
Sister Helen Prejean: Does Truth Matter?
http://prodpinnc.blogspot.com/2016/01/sister-helen-prejean-does-truth-matter.html
 
bcc: NY Times, Washington Post, Washington Times, Washington Examiner, Wall Street Journal, Baltimore Sun, POLITICO, Chicago Sun-Times, AP, NEWSWEEK, The Marshall Project, The Texas Tribune, The New Republic, Texas Monthly, Dallas Morning News, Houston Chronicle, Texas Tribune, Austin-American Statesman, San Antonio Express News, Fort Worth Star-Telegram, Lufkin Daily News, WFAA, Houston Public Media, KHOU CBS TV (Houston), KPRC NBC TV (Houston), Texas Public Radio, Catholic News Agency (CNA), Texas Standard, KERA, KUT, KSTX, KUHF, TV 8, Spectrum News (Austin), La Crosse Tribune (Wisconsin), [[ News programs/reporters/producers: ABC, CBS, NBC, CNN, FOX, MSNBC ]], in US and Intl., and many others
 
UK: The Times & Sunday Times (UK), SKY News, Belfast Telegraph, Irish Times, The Scotsman, Irish Examiner,  Byline Times, An Garda Siochana, Connacht Tribune, LADBIBLE, The Journal, Student Independent News, Galway Bay FM, FLIR FM, ThisIsGalway.ie,  Galway Town Hall Theatre, Galway Advertiser,  The Cast of The Exonerated & Galway Actors Workshop, and many more
 
======
Additional research,w/sources, w/fact checking/vetting & critical thinking, as required of everyone.  
 
1) The Death Penalty: Justice & Saving More Innocents
and
Students, Academics & Journalists: Death Penalty Research
(7 pro-death penalty experts are included)
======
Partial CV

Posted by at

Tuesday, September 27, 2022

Media Disaster: Nitrogen Hypoxia & Scientific American

sent 2/15/2023, 1/6/2024, 1/20/2024

Has Scientific American chosen not to correct this disaster of an article, below?

How and why would journalism ethics allow that?   from Dudley Sharp

=================

Some edits, confirming, the original, which was sent 9/17-28/2022, then 1/6/2024 & 1/20/2024

To: All Editors, Scientific American and Dana Smith

Subject: Media Disaster: The Death Penalty:
Nitrogen Hypoxia & Scientific American
(& sadly, Dr. Zivot, again)

RE: Errors Are the Rule Within
"New Execution Method Touted as More ‘Humane,’ but Evidence Is Lacking", Dana G. Smith, Scientific American, September 23, 2022
 
Subject: Media Disaster: The Death Penalty & Scientific American 
 
From: Dudley Sharp, independent researcher, death penalty expert, former opponent, 832-439-2113, CV at bottom
 
PREFACE:  When inaccuracies are allowed to remain, they become lies
 
The errors of fact and omission, within the article, are huge, many and vital and could have been avoided, had fact checking, vetting, research and critical thinking been present. They were not, or if they were, it vanished?
 
One has to wonder if it was intentional:
 
All that was needed, for an informed article was to search, either "deaths 'nitrogen gas' " or "deaths 'nitrogen hypoxia' ". It appears that not even that very basic research was done or if done, was, intentionally, left out of the article.
 
Scientific American could, hardly, do worse.
 
Proof
 
1) Scientific American : "Evidence is Lacking"
 
Rebuttal:  To the contrary . . . the evidence is overwhelming and is, easily, found (1-6):
 
a) For decades, and, very, recently, in industrial, manufacturing and other circumstances, we know that unconsciousness and, often, death, occur, both accidentally and intentionally, with little to no warning, because of nitrogen hypoxia (1-6). The evidence is robust, well documented and easy to find (1-6).
 
b) An infamous incident, just occurred, in 2021, with a report issued 2022, with six workers dying from nitrogen hypoxia (3):
 
c) The most infamous of these occurred at NASA, in 1981 (4):
 
"As they entered the aft compartment, unaware of the risk, technicians John Bjornstad, Nicholas “Nick” Cannon, and Forrest Cole were quickly overcome by the lack of oxygen. Technicians William Wolford and J.L. “Jimmy” Harper tried to help and were also affected. Rescuers airlifted Bjornstad to a hospital, but he died en route. Cole never regained consciousness and died in the hospital on April 1. Mullon survived, but died in 1995 from long-term complications from the accident." (4)
 
d) "Nitrogen asphyxiation hazards in industry resulted in 80 deaths from 1992 to 2002" (5).
 
e) The pilot testing and research, regarding nitrogen hypoxia, is voluminous. Look it up.
 
f) It is hard to believe that this mess was not intentional, as Scientific American didn't even look up what Wikipedia has to say, when one searches for " 'nitrogen gas hypoxia' Wikipedia", which produces this "Inert gas asphyxiation" (6), which included many more articles on the effects of nitrogen hypoxia (6), which Scientific American was either, fantastically, unaware of or left out.
 
g) It is also a well-known method for suicides. As Dr. Phillip Nitschke stated, for suicides, nitrogen gas hypoxia is "flawless" . . .  patients lose consciousness immediately. . . .and die a few minutes later." ". . . extremely quick . . . no drugs . . . reliable, peaceful, available . . . " (1,6).'
 
There are many more. Look them up.
 
Scientific American?
 
h) In addition, there has been human testing, regarding how long it takes to become unconscious with nitrogen hypoxia (1), inhaling nitrogen gas, through a tube (1,2) . . . 16-18 seconds (1,2).

i) humans have been aware of what a lack of oxygen does to them, for how long? 
 
Scientific American?
 
NOTE 1) Nitrogen Gas makes up 78% of the air we breathe, oxygen 21%.  As is obvious, to most, nitrogen is not a poison but, when displacing oxygen, can result in nitrogen hypoxia, bringing unconsciousness and death, often, very quickly (1-6), because of the absence of oxygen.
 
Using a mask, as, most likely, within executions, such will bring about unconsciousness and death, very quickly, as there will be lower or no levels of oxygen present, within a mask, as opposed to within a room or with a tube (1-6), where there will be more oxygen.
 
2) Missing from the article:
 
Left Out: Scientific American excluded that the known, conscious side effect of nitrogen hypoxia is euphoria (1). There is no reflex action - no choking nor gasping nor suffocation effect - only light headedness, maybe euphoria, prior to unconsciousness (1-6), when looking at 0% oxygen and 100% nitrogen (1-6).
 
Very important but missing.
 
3) Scientific American: "Where did the idea for nitrogen hypoxia come from?"
 
CORRECTION: Contrary to the SA article, that would be from:
 
Creque, S.A. "Killing with kindness – capital punishment by nitrogen asphyxiation" National Review, 1995-9-11. I suspect this is not the first reference.
 
I have been recommending it, sometime around 1997, when I found the above article and did further research.
 
Scientific American?
 
4) Scientific American made an additional fundamental and basic "error", within journalism and research., only, selecting experts, with a single view - anti-death penalty. I suspect it was intentional.
 
As detailed:
 
a) anti-death penalty Corinna Barrett Lain, a law professor:  Lain complains that Michael Copeland, a criminal justice professor, "who co-authored a white paper on (nitrogen hypoxia) (2)" . . . “He’s not a doctor. He doesn’t have any medical training. He’s not a scientist."
 
Rebuttal: Lain failed to mention any errors, if any, within Copeland's white paper (2).  Likely, Scientific American never asked "the, only, thing that mattered" . . . but, attack the author, not the facts. Pathetic.
 
Scientific American, also, "forgot (?)" to mention that there were three authors, and that their paper (2), correctly, confirmed the known data for 50 years (2 and 1-6).
 
Obviously, of no concern, to Scientific American. They left, all of it, out.
 
Lain, also a law professor, somehow, failed to excuse herself from this interview, as I could find no references, within Lain's CV, that Lain is a medical doctor, medically trained or a scientist, nor did she nor could she find any errors within the paper (2).
 
Scientific American didn't notice?
 
b) anti-death penalty Dr. Zivot MD “There is a claim, that I think is baseless, that nitrogen gas inhalation would cause a death that would be peaceful and not cruel. There’s no evidence for any of that.”
 
REBUTTAL: The evidence is, overwhelmingly, to the contrary, of Zivot's statement, as is obvious (1-6). Why did Zivot offer a guess? 

Responsible media would describe Zivot as an anti-death penalty activist, who has an MD. 
 
Lain, the three authors from the paper (2), knew considerable more than the medical Zivot, who offered nothing but ignorance, as is a pattern:


Scientific American?
 
c) anti-death penalty Robert Dunham, executive director, Death Penalty Information Center (DPIC) “. . . as far as anyone can tell, no one has considered the potentially lethal danger to execution personnel if [they] don’t carry it out properly.”
 
Rebuttal: Absurd, of course. The literature deals with that, in, great, detail (1-6), as it is of the utmost concern, in all of the many accidental deaths. (1-6). As a matter of history, reason and fact, it is impossible not to consider that issue, as all involved parties, with the exception of Dunham and Scientific American, are aware (See Note 1).
 
If adopted, nitrogen hypoxia will, likely, take place in the current lethal injection rooms, which are large, making it impossible, for harm to the execution teams, as the murderer will be dead in a few minutes, with it impossible for the nitrogen to overcome the team, as a leak, if any, would be tiny, the gas would be turned off, after death was confirmed, with  it, impossible, for that very small amount of nitrogen leakage, if any, to displace the oxygen to a degree approaching unconsciousness,  even more so in rooms with air ventilation which is, likely, all of them.
 
As detailed, deception is a DPIC specialty (7).

My rebuttals show how, radically, different the education of readers would be. I suspect the intent was not to educate, but to deceive.
 
Scientific American?
 
d) Dunham described the third drug, potassium chloride, in the original three-drug, lethal injection protocol, as “chemical fire.”
 
Rebuttal: Except if you are unconscious, which all were, prior to the injection of potassium chloride. The murderers would feel nothing (3). In addition, potassium chloride is not required, as Dunham well knows. Texas uses pentobarbitol, only.
 
e) Dunham says. “That created a false distance between the reality of capital punishment and the public perception of capital punishment.”
 
REBUTTAL: The "botched" execution rate with lethal injection is 1%, not 7% (9).
 
f) Zivot/ Scientific American: "Zivot and others have performed more than 200 autopsies on people killed by lethal injection using thiopental, pentobarbitol or midazolam . . . finding "most inmates’ lungs showed evidence of pulmonary edema, the buildup of fluid that produces a feeling of drowning. “Instead of falling off to sleep and dying, they were drowning in their own secretions and suffocating to death, sometimes masked by a paralytic,” Zivot says. “That’s, in fact, how they were dying.”
 
REBUTTAL: The autopsies did not prove, nor can they, that the inmates were not unconscious and, therefore, felt no pain. There is zero evidence that the first drugs, given, at overdose levels, somehow, decided on their own, to reverse their well known overdosing effects and, all of a sudden, stop working. They don't do that. Obvious.
 
Scientific American?  A truthful media description for Dr. Zivot would be that he is an anti-death penalty activist, who happens to be an anesthesiologist.
 
g) Lain "being gassed to death for six to 10 minutes or being slowly suffocated under a veneer of peacefulness for 10 to 20 minutes.”
 
REBUTTAL: There is no suffocation effect with nitrogen hypoxia. Unconsciousness will occur in less than 16 second, as per the study. Lain is, somehow, thoroughly, unaware of the overwhelming evidence of this (1-6).   
 
Scientific American?
 
5) Scientific American: At the Oklahoma hearing, "No scientific evidence was presented because there is little medical research on death by nitrogen gas. It is not clear exactly how long the process would take or how much the person would suffer."
 
Rebuttal: That is, clearly, the opposite of the known evidence (1-6). We have ample evidence, based within scientific research (1-6), as is well known, some of which was presented, within the hearing.
 
Please forward your transcript of the hearing.
 
In many, if not most, of the nitrogen deaths, no autopsies were performed, because the medical personnel knew, precisely and medically, what killed them, as is found within the literature.
 
I would believe that no scientific material was presented, within the hearing, if Scientific American was the only researcher. That would explain it. But, they weren't.
 
 6) Scientific American: "If a mask is used, it must have an airtight seal so that the inmate cannot breathe any oxygen and prolong their death and so that the execution team and witnesses are not exposed to potentially deadly levels of the gas."
 
CORRECTION: As detailed (1,2), if a small leak within the mask, it may take hours, or never, for the nitrogen gas level to reach any type of critical level to the execution team, particularly, within a room, the size used in lethal injection, which has fresh airflow, as well, as you can find within the studies, stating that such will quickly dissipate within the room, causing no danger to others, in that type of scenario (1,2 & NOTE 1), as one would expect as 78% nitrogen is the norm, within the air we breathe.
 
The inmate would be unconscious,within seconds, dead within minutes (1,2 & NOTE 1), after which the gas is turned off.
 
7) Scientific American: "Doctors and drug manufacturers have protested lethal injection since its inception, not wanting their products and techniques to be used for killing rather than healing."
 
REBUTTAL: Ridiculous. In both abortion and euthanasia, their " products and techniques" are, intentionally, used for killing, as everyone is aware, except Scientific American.
 
How many physicians and drug manufacturers have, are and will be forced to pay, via lawsuit losses and/or are settling billions of dollars in lawsuits, regarding countless thousands of deaths? 
 
How many innocent patients die, every year, from "medical misadventure?  40,000-400,000/yr, depending upon study.  How many "botched" execution of guilty murderers have we had since 1973? Around 16, or 1 every three years. 
 
The drug companies were invisible and speechless, from 1977, when the lethal injection protocols were, publicly, adopted by Oklahoma, and from 1982, when they were first used for executions, in Texas, until 2009 - 32 years and 27 years later, respectively (8) . . . was it ethics or publicity(8)?
 
Scientific American?
 
8) Scientific American: "Neither pentobarbital nor midazolam function as an anesthetic or pain reliever."
 
DISCLOSURE: Somehow, left out . . . at massive overdose levels, they both cause unconsciousness, quickly, and death . . .  quite the anesthetic and pain reliever, even though technically, neither.
 
9)  Scientific American: "With these changes, problems during lethal injections started to arise more frequently. In the case of John Marion Grant in Oklahoma, the drugs caused vomiting and full-body convulsions over the course of 15 minutes."
 
REBUTTAL: Fact checking details that those are the known side effects of the drugs used (9).  The obvious thing to look for. I found it within 1 minute. I could find not one reporter that did so.
 
Scientific American?
 
Search overdose midazolam "side effects".
 
Normal side effects include nausea, seizures, dizziness, with overdoses furthering those, until death. It is also, well known, that such side effects may occur in many overdose situations. Lethal injection executions are drug overdoses.
 
Vomiting, as well as uncontrollable "tremors", may occur, on their own, when facing trying episodes, such as facing an immediate death.
 
It's not that editors and reporters do not fact check, vet, research nor use critical thinking. It is that they refuse to. Obvious.
 
9) Scientific American: "In an even more horrifying event, in Arizona, Joseph Wood III gasped and snorted for nearly two hours before dying."
 
REBUTTAL: From Karen Sibert, an anesthesiologist and associate professor at Cedars-Sinai Medical Center. Sibert was speaking on behalf of the California Society of Anesthesiologists: “This (Wood's) doesn’t actually sound like a botched execution. This actually sounds like a typical scenario if you used that drug combination,” (10)
 
"(Wood's) sedation level was continually monitored and verified by the IV team,' Mr. Ryan said. The intravenous team included a doctor, he said." (10)
 
Wood's breathing, wheezing and/or gasping is a product of respiratory distress, as expected. That is easy for anyone to determine (10), IF they care, one wit, about fact checking, vetting, research and critical thinking.
 
Scientific American?
 
10) Scientific American : "Most recently, the people carrying out the executions for Joe Nathan James, Jr. and Doyle Lee Hamm in Alabama were unable to insert the IV lines to administer the drugs. This resulted in numerous puncture wounds and incisions in James’s and Hamm’s skin, delaying the former’s execution for hours and halting the latter’s altogether."
 
CORRECTION: The majority of the false "botched" execution claims are attributed to multiple needle pricks and/or problems with the murderer's veins. Everyone familiar with lethal injections and other IV procedures knows that multiple needle pricks are a responsible and necessary function to avoid "botched" executions or botched medical IV use (9).
 
Multiple needle pricks are 1) not "botched" executions, but represent a common, normal safety practice with all IV procedures, daily and worldwide, 2) preparation for the execution, not the execution, and 3) often required to have secure needle insertion and retention.
 
It would be negligent not to go through that procedure, the opposite of "botched".
 
The entire process of looking for good veins is to prevent "botched" executions. Once good usable, secure veins were found, the executions proceeded   . . . or, if not found, abandoned.
 
It is the opposite of "botched" (9). It is responsible.
 
Conclusion:
 
This from Scientific American. Horrendous.
 
Here are some pro death penalty experts and additional research, if you care (11). 
 
====
FN
 
1)  Nitrogen Gas; Flawless, peaceful, unrestricted method of execution
https://prodpinnc.blogspot.com/2014/09/nitrogen-gas-flawless-peaceful.html
 
2) Nitrogen Induced Hypoxia as a Form of Capital Punishment, Michael P. Copeland, J.D. Thorn Parr, M.S. Christine Papas, J.D., Ph.D. East Central University , 6/08/2018,
Nitrogen Hypoxia as Capital Punishment - East Central University Draft Report - DocumentCloud
or
https://dpic-cdn.org/production/legacy/Copeland%20Report_Nitrogen-Hypoxia.pdf 
 
3) 6 Die After Liquid Nitrogen Leak at Georgia Poultry Plant, New York Times,  1/28.2021,
https://www.nytimes.com/2021/01/28/us/foundation-food-group-liquid-nitrogen-plant.html 
and
6 Workers Killed by Nitrogen Gas
U.S. Chemical Safety and Hazard Investigation Board,
Liquid Nitrogen Release at Foundation Food Group
Investigation Update, September, 2022,
https://www.csb.gov/assets/1/20/ffg_investigation_update_2022-09-07_final_(1).pdf?16833 
 
4) "40 Years Ago: Three Weeks Before the Launch of STS-1",  by John Uri, RoundUp, 2021-03-19,
https://roundupreads.jsc.nasa.gov/ 
 
5)  HAZARDS OF NITROGEN ASPHYXIATIO, U.S. Chemical Safety and Hazard Investigation Board , Safety Bulletin,  No. 2003-10-B | June 2003,
https://web.archive.org/web/20160304190717/http://www.csb.gov/assets/1/19/SB-Nitrogen-6-11-031.pdf 
 
6) "Inert gas asphyxiation"Wikipedia,
https://en.wikipedia.org/wiki/Inert_gas_asphyxiation 
 
7) The Death Row "Exonerated"/"Innocent" Frauds 
 71-83% Error Rate in Death Row "Innocent" Claims, 
Well Known Since 2000 
 
8) Read the first two sections
 
The Death Penalty & Medical Ethics Revisited
https://prodpinnc.blogspot.com/2015/09/the-death-penalty-medical-ethics.html 
 
9)  Rebuttal: Botched Executions
http://prodpinnc.blogspot.com/2017/01/rebuttal-botched-executions.html
 
10) No "Botched" Execution - Arizona (or Ohio)
https://prodpinnc.blogspot.com/2014/08/no-botched-execution-arizona-or-ohio.html
 
11)  Research,w/sources, w/fact checking/vetting & critical thinking, as required of everyone.
 
Anti-death penalty facts are in error and/or the pro-death penalty positions are stronger, as detailed and prepared to defend and debate
 
The Death Penalty: Justice & Saving More Innocents
 
Students, Academics & Journalists: Death Penalty Research
(contacts for 7 pro-death penalty experts)
https://prodpinnc.blogspot.com/2022/01/students-death-penalty-research.html

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600+ pro death penalty quotes from murder victim's families &
3300+ from some of the greatest thinkers in history
http://prodpquotes.info/ 

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Partial CV, Dudley Sharp
https://prodpinnc.blogspot.com/2021/08/partial-cv-dudley-sharp-independent.htmlhttps://roundupreads.jsc.nasa.gov/ 
 
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