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Ohio guards: Inmate was urged to fake suffocation

Tuesday - 1/28/2014, 12:00pm  ET

JULIE CARR SMYTH
Associated Press

COLUMBUS, Ohio (AP) -- An attorney for a condemned Ohio inmate whose slow, gasping execution with a new drug combination renewed questions about the death penalty was temporarily suspended last week while officials investigated whether he had coached the condemned man to fake symptoms of suffocation.

The Office of the Public Defender said Robert Lowe, one of the attorneys representing inmate Dennis McGuire, was back at work Monday after an internal review failed to substantiate the allegation.

State prison records released Monday say McGuire told guards that Lowe counseled him to make a show of his death that would, perhaps, lead to abolition of the death penalty. But three accounts from prison officials indicate McGuire refused to put on a display.

"He wants me to put on this big show in front of my kids, all right when I'm dying!" McGuire is reported as having told one guard. "I ain't gonna do this. It's about me and my kids, not him and his cause!"

Amy Borror, a spokeswoman for the public defender's office, said all accounts from execution eyewitnesses -- which did not include Lowe -- indicate McGuire was unconscious at the time he struggled to breathe.

"We have no way of knowing, obviously, because we can't interview Mr. McGuire," she said.

Borror said Lowe was not speaking with the media. He did not immediately return an email message or a phone message left at a number listed under his name. The office's director, Tim Young, told the Dispatch on Monday that no one in his office encouraged McGuire to fake any symptoms.

Borror said Lowe walked McGuire through the steps involved in an execution and McGuire's statements may have arisen from an interpretation of those conversations. Borror said Lowe asked McGuire to give a thumbs-up during the execution as a way of determining when he lost consciousness.

Due to ongoing federal litigation, she said the public defender's office closely monitors the sequence of events during the execution process.

Prisons officials alerted Gov. John Kasich's lawyer the night before the execution that McGuire had been overheard telling family members he'd been "encouraged to feign suffocation when the lethal injection drugs were first administered," according to a statement released by the public defender's office. The investigation was first reported by The Columbus Dispatch.

McGuire, 53, was put to death Jan. 16 for raping and killing a pregnant newlywed in 1989. He was executed with a combination of drugs -- the sedative midazolam and the painkiller hydromorphone -- that had never before been used in the U.S. and his fitful final moments sparked criticism and calls for a death-penalty moratorium.

McGuire took 26 minutes to die after the chemicals began flowing -- the longest execution of the 53 carried out in Ohio since capital punishment resumed 15 years ago. Family members wept and later said the process amounted to torture; they have sued alleging undue cruelty.

One report from the Ohio Department of Rehabilitation and Correction suggests McGuire believed the signaling system he'd set up with his attorney -- including the use of a thumbs-up gesture -- could be used to save his life.

The night before his execution, a corrections team leader reported being told by McGuire that he understood Lowe as saying "if he started to choke or jerk in any way" the governor would put a stop to the execution.

Two prison employees reported hearing McGuire say that, if it weren't for his daughter being present at his execution, he would "really put on a show."

The public defender's office did not permit Lowe or any other staff from the public defender's office to witness the execution "in order to avoid any appearance that OPD staff in any way influenced the execution process," Borror said.


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