Created on Wednesday, 11 June 2014 Written by ANDREW WELSH-HUGGINS, AP Legal Affairs Writer
COLUMBUS, Ohio (AP) — The state is shielding interviews its attorneys conducted with about 20 prison employees involved in the January execution of an inmate who repeatedly gasped and snorted as he was put to death.
Lawyers with the attorney general's office, which would normally represent state workers sued for on-the-job actions, interviewed the employees after the Jan. 16 execution of Dennis McGuire, who took 26 minutes to die.
The Associated Press asked to review the interviews, but the Department of Rehabilitation and Correction denied the request, saying they were protected by attorney-client privilege and because they constitute trial preparation records. The agency also said they were protected by a federal judge's gag order.
The state, which normally doesn't conduct such attorney-client interviews with employees after executions, more or less acknowledged the interviews were prompted by the threat of a lawsuit.
"As you know, the day after the execution, the McGuire family announced their intention to sue DRC over the execution," prisons spokeswoman JoEllen Smith said in an email. "In fact, just a week later the family sued the director and other state officials in federal court."
The interviews were conducted "to collect and preserve the recollections of the execution team and other witnesses," Lisa Hackley, spokeswoman for Attorney General Mike DeWine, said in an email.
The prisons agency regularly releases statements by guards after major incidents, such as inmate assaults or escape attempts, but it's unclear what the practice has been after past botched executions.
In 2009, when the state failed to put condemned killer Romell Broom to death after two hours because the execution team couldn't find a suitable injection site, defense attorneys' interviews with prison officials present that day were filed in federal court a month later.
Legal complaints have also followed problematic executions in the past but usually as part of an ongoing federal lawsuit about Ohio's execution methods.
The McGuire case is unusual because the threat of a lawsuit came only hours after the execution, and from members of his family.
Their lawsuit, filed Jan. 26 and alleging McGuire endured needless pain and suffering, is separate from the ongoing federal lawsuit.
On April 28, the state concluded there was no evidence that McGuire "experienced any pain, distress or anxiety." It said its review of the execution was based in part on interviews with nearly 20 prison employees.
Nevertheless, "to allay any remaining concerns," the prisons agency also announced it was boosting the dosages of the two drugs used to execute McGuire for future executions.
The lawyer representing McGuire's adult children said the state can't shield the records after using them to justify the way the execution was carried out.
"The validity of the report itself can only be based upon the information that makes up the report," attorney Jon Paul Rion said Wednesday. "If the state is refusing to provide the underlying information to the report, I think that raises some questions."
After McGuire's execution, Gov. John Kasich granted an eight-month reprieve to an inmate scheduled to die March 19.
Last month, federal judge Gregory Frost put executions on hold until Aug. 15, delaying executions that had been scheduled in July and early August. The delay was to give lawyers time to gather information about the state's decision to use bigger doses and for "necessary preparations" for implementing that decision, Frost said.