Witnesses to previous executions in Texas and elsewhere that were conducted with pentobarbital have reported prisoners crying out in pain, and saying they felt “burning” as the drug entered their veins.
As the JC revealed earlier this month, Murphy, 48, is one of at least 12 halachically Jewish prisoners on death rows in America. He went through a prison barmitzvah in 2016, and is now being supported by the US legal titan Professor Alan Dershowitz and campaign group L’Chaim: Jews Against the Death Penalty.
Alan Dershowitz who is supporting the Murphy (Photo: Getty Images)
Having endured an abusive, traumatic childhood, much of it spent in care, Murphy, 48, was convicted in 2001 of murdering Bertie Lee Cunningham, 79, after hijacking her car. Before the murder he had been diagnosed with Dissociative Identity Disorder, which meant he felt he had multiple personalities. He had repeatedly been admitted to psychiatric hospitals, and was both suicidal and experiencing psychotic hallucinations.
He has never disputed that he committed this crime. His spiritual adviser, Rabbi Dovid Goldstein of the Chabad-Lubavitch of West Houston and the head Jewish chaplain to the Texas prison system, says that for many years, he has been filled with remorse, and has made tshuva, repentance.
In Texas, only a tiny percentage of convicted murderers are sentenced to death, and it is juries, not judges, who decide whether to do so in the second, “punishment phase” of a trial. To vote for death, they must find it proven beyond reasonable doubt that if a prisoner were allowed to live, they would constitute “a continuing threat to society”.
The prosecution sought to persuade the jury at Murphy’s trial that he did pose such a threat by claiming he exhibited a pattern of violent criminal behaviour. Central to their case was their claim that he had committed an earlier carjacking in Arlington, Texas, three years before he murdered Cunningham. The victim, Sheryl Wilhelm, survived by jumping from her moving stolen car. After she escaped, her assailant drove on to Wichita Falls, where he robbed a second woman and abandoned the stolen vehicle.
Murphy had never been investigated, much less charged, for these crimes, for which he had an alibi. But during the punishment phase of his trial, the prosecutor claimed that he had committed them, and that this was proof of his dangerousness.
In a writ filed this week that asks the Texas Court of Criminal Appeals to quash Murphy’s sentence, his lawyer Catherine Bernhard points out that the jury never heard about a crucial piece of evidence – a report dated November 2, 2000, signed by detective John Stanton of the Arlington police.
The death chamber in Huntsville where Murphy is due to be executed (Getty Images)
It says that after Murphy’s arrest for murder, the Police Crime Scene Search Unit had tried to compare his finger and palm prints with those retrieved from Wilhelm’s car and other items associated with the carjacking and robberies three years earlier. The report states baldly: “No match made.”
Stanton gave evidence in the punishment phase of Murphy’s trial. But when the defence lawyer asked him: “Were prints sent to you from the car found in Wichita Falls?” Stanton replied: “They collected some fingerprint evidence but nothing that was of quality enough to be comparable.”
The report he had signed made no mention of “poor quality” fingerprints. Bernhard’s court writ argues: “Not only was this blatantly false testimony, the [prosecution] was aware that Murphy’s fingerprints did not match the Arlington/Wichita Falls prints.” The transcript of a pre-trial hearing shows that the prosecutor told the court: “I am aware that none of the prints have matched the prints obtained from the defendant.”
Bernhard’s writ continues: “Murphy was not the perpetrator of the Arlington/Wichita Falls robberies and the State knew it. The State knew there was evidence that exonerated Murphy. And yet the State allowed Stanton to testify that there was no fingerprint evidence in the case. This testimony was false and material.”
A second piece of evidence that the jury did not hear was the fact that the victim of the robbery in Wichita Falls gave a description of her attacker, saying he had dark skin. Murphy, however, is very pale – and yet the report of her description was never disclosed to Murphy’s trial defence team. Bernhard’s writ says this too was “material evidence that Murphy did not commit the Arlington/Wichita Falls robberies”.
Bernhard has filed a second writ asking the court where Murphy was tried in Dallas to halt the execution on the grounds that the pentobarbital which will be pumped into his veins is long past is expiration date and damaged by the blaze that raged through the prison building where it was stored on August 25.
“When exposed to high temperatures, pentobarbital quickly degrades”, says the writ. “Its chemical structure changes, and it turns into an entirely different chemical with a different pharmacological impact on the body.” These claims are supported by scientific reports also filed with the court.
Bernhard’s writ says she has repeatedly asked the Texas prison system for information about the state of its lethal injection drug store and how it was affected by the fire, but it has refused to provide it.
Moreover, official US guidelines lay down strict conditions for the storage and use of every pharmaceutical drug, and, says the writ, failing to follow them can lead to “contamination, patient harm, and unpredictable drug effects”. The guidelines say pentobarbital should be used within 24 hours if stored at room temperature, 72 hours if kept in a fridge, and 45 days if frozen to a temperature below minus 10 Celsius.
The writ states that Texas stores pentobarbital at room temperature, but because it has been unable to source further supplies, “some of its vials of pentobarbital are over 900 days old, and the rest are over 250 days old… it does not possess any pentobarbital that was not long ago expired, even before taking account of the fire.”
Jedidiah Murphy, pictured recently during a prison visit from his rabbi
This means, it continues, it is likely that injecting it will cause “painful pulmonary emboli, haematoma, acute inflammation and phlebitis”. At the same time, its “effectiveness will have vastly decreased”. Trying to execute Murphy with this drug would amount to cruel and unusual punishment because it would “inflict pain beyond what is necessary to end the condemned prisoner’s life,” and may “involve torture or a lingering death”.
The writ adds: “The Texas Department of Criminal Justice does not know and cannot know whether they will be injecting Mr Murphy with pentobarbital, extremely weak pentobarbital, pentobarbital containing dangerous particulates, or a different chemical altogether. This creates substantial risks of serious, severe, and super-added harm and pain. It also adds terror, as Mr Murphy is aware that Texas plans to inject him with unknown drugs. This alone is causing Mr Murphy needless suffering.”
Recent Texas executions using pentobarbital suggest these risks are real. According to a reporter who attended the execution of Troy Clark in September 2018, he said it “burned going in”, adding “I feel it” before grunting, gasping and finally starting to snore. The same year Danny Bible was heard to mutter “burning” and “it hurts” before he lost consciousness.
The following year Larry Swearingen was seen grimacing in pain as the drug entered his body. He said “I can taste it”, and described a “burning in his right arm”. Prisoners executed in other states have also said they felt pain and burning before they died. Michael Wilson, executed in Oklahoma in 2014, said “I feel my whole body burning” 20 seconds after his execution began.
Michael Zoosman, a former prison chaplain and co-founder of L’Chaim: Jews Against the Death Penalty, told the JC he was horrified by the contents of the new legal filings.
“Time is running out, but while there is life, there is still hope. If the US Constitution has any meaning, the courts must step in and stop this execution. It would be a profound injustice, and a flagrant assault on human decency. As we well know from our most sacred text, the Torah itself: ‘Tzedek, Tzedek Tirdof! Justice, Justice you shall pursue!’”
