THIS IS PART OF “OPERATING CAPITAL,” AN ONGOING LENS DISCUSSION ABOUT LOUISIANA’S RESUMPTION OF EXECUTIONS.

Earlier this month, Dr. Joseph Antognini, a California-based retired anesthesiologist, walked into the execution chamber at Louisiana State Penitentiary at Angola.

He tried on the air-tight masks that jail workers plan to make use of to execute Loss of life Row prisoner Jessie Hoffman, utilizing nitrogen hypoxia, a way that Louisiana executioners have by no means earlier than used.

Antognini examined the masks. An officer flipped a change, pumping air into the masks at 70 litres per minute. Pure nitrogen fuel might be pumped into the masks at that charge when Hoffman wears it, as early as Tuesday. The nitrogen will exchange the oxygen in his physique; he’ll asphyxiate and finally die. 

Antognini breathed simply. The movement charge was good. 

He shook his head. The masks didn’t fall off. 

In a declaration filed after his go to to Angola, Antognini gave unqualified approval to the state’s new execution methodology and the gear he had seen. 

“Louisiana’s methodology of execution doesn’t trigger ache itself,” he wrote, giving a thumbs-up to nitrogen hypoxia in a means that’s on-brand for the person that capital-punishment opponents generally discuss with as “Dr. Loss of life.” 

Past the pejorative nickname, advocates say that Antognini is principally a authorities employed hand who’s enriching himself via taxpayer {dollars} whereas ignoring medical science and violating his Hippocratic oath.

It now seems seemingly Hoffman’s execution will go ahead as deliberate on Tuesday, March 18. However that didn’t occur and not using a authorized combat. 

Final week, after listening to testimony from Antognini and different witnesses about nitrogen hypoxia, Baton Rouge federal decide Shelly Dick blocked Hoffman from being executed as scheduled, till a full listening to might be held concerning the execution strategies. Hoffman had “clearly proven,” she wrote in her resolution, “that he’s considerably prone to show that nitrogen hypoxia poses a considerable threat of aware terror and psychological ache.”

However over the weekend, the Fifth Circuit Courtroom of Appeals overturned Dick’s ruling, 

Attorneys for Hoffman had argued – and nonetheless keep – that nitrogen hypoxia must be thought-about merciless and strange punishment, placing it off-limits to Louisiana as a way of execution. And in Louisiana and different states, the place advocates have filed go well with to cease the usage of an execution protocol like nitrogen hypoxia, Antognini is commonly the state’s chief authorized witness supporting its use. 

Touring the nation to vouch for execution protocols

Right here in Louisiana, Antognini was employed by a crew of attorneys representing the state, together with Lawyer Common Liz Murrill’s workplace. After a 15-year hiatus in executions in Louisiana, tied principally to difficulties accessing the medicine utilized in deadly injection, this yr Louisiana’s authorized crew is supporting Gov. Jeff Landry’s push to restart executions. 

Throughout the nation, many states have related wants, as extra governors transfer towards actively executing these on their Loss of life Rows. Over the previous decade, Antognini has traveled extensively, vouching for the protection of execution protocols, each deadly injection and nitrogen hypoxia. He’s testified for the states of South Dakota, Ohio, South Carolina, Arkansas, Missouri, Georgia and Alabama and for the federal authorities in 2020, throughout President Donald Trump’s first time period. 

Antognini didn’t reply to an emailed request for an interview with The Lens. Telephone calls to his workplace went unanswered.

In practically a decade, Antognini has by no means declined to function an skilled witness due to the tactic of execution a authorities was planning to make use of, in line with a courtroom deposition. 

As an example, Antognini has by no means personally noticed an execution by nitrogen hypoxia. However he frolicked earlier this month in Louisiana, as a result of he’s turn into one of many nation’s most relied-upon witnesses on the subject. States, largely purple states, convey him into courtroom instances citing his medical {qualifications}. 

But, regardless of his skilled charge of at the very least $575 an hour – with $675 an hour for deposition testimony and $7,000 a day for courtroom appearances – Antognini isn’t recognized for unbiased inquiry, critics say.

He has made about $350,000 serving as an skilled witness in execution instances within the final 9 years, he estimated in a current deposition. That features $50,000 to $100,000 testifying about nitrogen hypoxia. 

One of many major arguments towards nitrogen hypoxia is the convulsions triggered by the method. Individuals executed via nitrogen hypoxia can shake and convulse vigorously for a number of minutes; some say the convulsions point out extended consciousness within the individual being put to demise. Critics say that even veterinarians have stopped utilizing nitrogen to place down pets as a result of it’s seen as cruelty to animals. 

In Alabama, the one state to make use of this methodology so far, witnesses to every of the state’s 4 nitrogen-hypoxia executions have cited the violent actions of the condemned males as proof of extreme psychological misery and struggling. It quantities to torture, they contend.

But in a press release constant along with his popularity, Antognini sees nitrogen-hypoxia convulsions as nothing to fret about, so long as the face masks is safe. 

Preliminary convulsions shouldn’t be seen as painful, he stated. “A few of these [movements] might have occurred due to the aware try by the inmate to dislodge the masks, earlier than the nitrogen fuel was administered,” Antognini wrote in a courtroom declaration after his go to to Angola. 

Equally, later convulsions shouldn’t be seen as painful, he emphasised. “Different actions after the onset of unconsciousness are seemingly as a consequence of involuntary actions related to hypoxia within the central nervous system.”

‘Untested scientific hypotheses’

Final yr, the Louisiana legislature added nitrogen hypoxia as one of many state’s authorized strategies of execution. As soon as the legislation took impact in July, the state secretary of the Division of Corrections – which implements executions in response to parish-initiated execution warrants – might select to make use of hypoxia or the state’s different beforehand permitted strategies, together with deadly injection and electrocution.

On February 20, a decide in St. Tammany Parish signed a demise warrant for Jessie Hoffman, who was convicted of the 1996 homicide of Mary “Molly” Elliott and has been on Loss of life Row for 26 years. His execution was then scheduled for March 18. 

On February 25, legal professionals for Hoffman filed a problem to the approaching execution, arguing that nitrogen hypoxia is “merciless, unreliable and that may inflict excruciating struggling on Mr. Hoffman.” They’ve filed a clemency petition, asking that his sentence be modified to life-without-parole. 

But when the execution strikes ahead, his legal professionals contend, Hoffman ought to face both a firing squad or be executed via a mixture of medicine used for medical-aid-in-dying. (To efficiently problem a state’s execution protocol as merciless and strange punishment, plaintiffs should determine a “possible, readily applied” different process that might “considerably cut back a considerable threat of extreme ache,” the U.S. Supreme Courtroom has held.)

To make their case, Hoffman’s attorneys additionally wanted an skilled witness. They enlisted Dr. Philip Bickler, an anesthesiologist who has been the director of the Hypoxia Analysis Laboratory at College of California, San Francisco, because the early 1990’s. Bickler has carried out greater than 5,000 research on the results of oxygen deprivation in people. 

At an evidentiary listening to final week, Bickler testified that primarily based on his analysis and on experiences of nitrogen-hypoxia executions in Alabama, the execution methodology elicits a “terror response” and that it quantities to “pressured asphyxiation, gassing a topic to demise, exposing him to a scarcity of oxygen such that each excessive discomfort, misery, ache, and terror can be felt all the way in which as much as the purpose of dropping consciousness.”

Below sure circumstances an individual respiration nitrogen could lose consciousness in below a minute, Bickler testified. However the circumstances of an execution — notably that an individual would seemingly try to carry their breath to keep away from imminent demise — make it possible that the person might be aware from anyplace between three and 5 minutes, he stated, noting that Hoffman’s lengthy historical past of Publish Traumatic Stress Dysfunction and claustrophobia would seemingly improve his struggling.

When Antognini took the stand for the state, he argued that somebody is prone to lose consciousness in below a minute as soon as they “inhale 90 to 100% nitrogen fuel.” He acknowledged that the necessity to breathe, whereas realizing the subsequent breath would possibly kill you, might trigger “extreme emotional struggling.”  However in contrast with the opposite strategies, the fear was not better with hypoxia, implied Antognini, who stated. “It’s going to be current both means, I might assume.”

Antognini, a board-certified anesthesiologist who not practices, was a professor for 19 years on the College of California Davis, the place he serves as professor emeritus, and directed perioperative providers for 5 years at UC Davis Medical Middle. Immediately, he works part-time because the chief scientific officer at a start-up pharmaceutical firm known as Expanaesthetics. Whereas his job historical past is spectacular, his lack of scholarship and experience in hypoxia stood out in his Louisiana testimony.  Or so the decide wrote.

“Dr. Antognini has by no means clinically studied the results of hypoxia on people,” Dick wrote in her opinion blocking Hoffman’s execution. “He has not printed nor introduced any research concerning the results of nitrogen hypoxia. Professionally, the one research of human hypoxia Dr. Antognini has completed is in connection to offering opinions to Alabama and Louisiana in help of nitrogen hypoxia execution.” 

Antognini’s opinions had been “untested scientific hypotheses,” Dick wrote, and the research he relied on had been “both irrelevant or unpersuasive.”

Bickler’s data and arguments had been much more compelling, Dick discovered. “The Courtroom is satisfied by Dr. Bickler’s testimony and by widespread sense that the deprivation of oxygen to the lungs causes a primal urge to breathe and emotions of intense terror when inhalation doesn’t ship oxygen to the lungs,” Dick wrote. “The specialists agree and the Courtroom finds that this causes extreme psychological ache.” 

Different judges have given Antognini’s opinions extra weight. 

Simply six weeks in the past, in Alabama, after Loss of life Row prisoner Demetrius Frazier challenged his scheduled nitrogen-hypoxia execution on the identical grounds – that it was merciless and strange punishment – the state employed Antognini to testify. 

The presiding decide dominated towards Frazier, citing the state’s chief witness. “Confronted with competing accounts, the Courtroom assigns better weight to Dr. Antognini’s skilled opinion that an inmate loses consciousness nearer to thirty to forty seconds after nitrogen fuel is launched,” the decide wrote, as she refused to dam the process.

Frazier was executed on February 6 of this yr. 

‘He’s doing it to make some huge cash’

Past the science of executions, Antognini, as an anesthesiologist, can be a medical physician held to a code {of professional} ethics which are finest summarized below the medical motto, “Do no hurt.”

As a corporation, the American Medical Affiliation has lengthy opposed doctor involvement in capital punishment. “A person’s opinion on capital punishment is the private ethical resolution of the person,” the assertion reads. “(However) a doctor, as a member of a occupation devoted to preserving life when there may be hope of doing so, shouldn’t be a participant in a legally licensed execution.” 

Debates about docs aiding in prosecutions soared as deadly injection grew to become widespread as an execution methodology, changing the electrical chair, which didn’t require anybody who regarded like a doctor to drag the lever. Nonetheless, many state protocols require a doctor to take part in its executions. Some have argued that this position can be a “non-clinical” transaction, unbound by ethics, whereas critics say that so long as docs are utilizing data and strategies attributed to drugs, they need to keep the integrity of the occupation. 

The AMA assertion defines participation as any motion that “would immediately trigger the demise of the condemned,”  “would help, supervise, or contribute to the power of one other particular person to immediately trigger the demise of the condemned,” or “might mechanically trigger an execution to be carried out on a condemned prisoner.” 

In 2014, the American Board of Anesthesiology made its personal assertion, particular to its occupation. “Sufferers ought to by no means confuse the demise chamber with the working room, deadly doses of execution medicine with anesthetic medicine, or the executioner with the anesthesiologist,” wrote board secretary Dr. J. Jeffrey Andrews. “Physicians shouldn’t be anticipated to behave in ways in which violate the ethics of medical apply, even when these acts are authorized. Anesthesiologists are healers, not executioners.”

To some within the medical discipline, Antognini’s willingness to greenlight authorities execution protocol bumps up towards that prohibition. 

In a case difficult the federal execution of a person in 2020, towards the tip of the primary Trump administration, Dr. Michael Stephen, a pulmonary doctor on the College of Pennsylvania in Philadelphia, testified reverse Antognini, whom he described as a  “employed hand.”

“I imply, he makes some huge cash off it, proper?” Stephen stated. “He’s doing it to make some huge cash.”

Antognini’s habits could not violate the letter of the AMA ethics code, however it violates the spirit behind these ethics, Stephen stated. “Together with his monitor file, that’s basically what he’s doing. He’s endorsing the state’s and the federal government’s proper to execute its residents.” 

All through his work, Angotnini is cautious to not delve into the ethical or moral implications of his opinions. 

“I by no means handle whether or not a protocol is humane or not,” Antognini testified on the evidentiary listening to. “I don’t assume that’s my position as an skilled witness. With all due respect, I feel that’s for the courtroom to resolve, not for me.”

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