by Jo Ellen Nott

Twenty-seven states in the U.S. have the death penalty. Those states and the federal government carry out the sentence by injecting a lethal mix of one, two, or three drugs as their execution of choice. Death by lethal injection, however, is not always humane, and its opponents point to it as an unconstitutionally cruel and unusual punishment. Understandably, the specific protocols used in the different states are widely challenged prior to each execution as the public grapples with reports of botched executions causing prolonged agony and suffering.

These challenges fall heavily on the judiciary, as judges must now evaluate the credibility of medical experts and complex scientific testimony before admitting it as evidence. The U.S. Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579 (1993), established the standard for admitting scientific testimony in federal courts.

Under Daubert, judges are mandated to consider four factors before admitting expert testimony into evidence: (1) the theory can and has been tested, (2) the theory has been subject to peer review, (3) the error rate is known, (4) and the theory has gained acceptance in the scientific community. The mandates present a considerable challenge for judges hearing death penalty cases and their appeals because the science of death by lethal injection is complex and constantly evolving. Some capital punishment experts say that lawyers and judges are not always prepared to make these critical Daubert evaluations. 

Daniel Buffington, a Florida-based pharmacist who provides expert witness testimony in cases involving lethal injection, has been the subject of important challenges made by defense attorneys for death row clients. He has earned at least $345,534 for his services since 2015, testifying in seven states about the efficacy of lethal injection cocktails.

In a 2017 Ohio case, however, defense lawyers for death row clients challenged Buffington. He had provided written testimony saying the prisoners would not feel pain from the injections of three drugs. The lawyers argued that Buffington was unqualified to testify in a hearing because he had not administered general anesthesia or conducted research on midazolam, the key sedative in the execution protocol.

The judge rejected the motion to bar Buffington’s testimony. When the prisoners’ lawyers challenged the pharmacist again in court, the judge held firm, defending Buffington’s testimony: “He’s certainly better able to understand and explain induction of anesthesia than I am. I have no experience of induction of anesthesia except having had anesthesia induced on my own body and watching it with my wife and my son, and that’s far less than this witness has.” The judge admitted Buffington as an expert witness and allowed his testimony. 

Legal experts recognize this as a critical weakness in the judicial system: “Not only does the law rely on lawyers to scrutinize experts, but judges must also evaluate many technical issues for themselves such as whether a forensic technique is legitimate science or whether a certain drug will anesthetize a prisoner.” These experts are concerned that jurists are not always well prepared, nor do they have the capacity to evaluate testimony based on Daubert’s standard. 

Patrick Schiltz, chair of the advisory committee on evidence rules for the Judicial Conference of the United States, told ProPublica that “Sometimes we have really, really hard technical issues and it is a criticism of Daubert that it asks the judges to do something that judges aren’t particularly well suited to do.”           

When a trial takes place in front of a judge instead of a jury, judges can allow experts to testify and then decide later how much weight to give their testimony. ProPublica reports that this has happened at least twice in method of execution cases where states have hired Buffington.

In cases not related to lethal injection, some judges have also challenged Buffington’s credentials, pointing out inadequate research behind his opinions and attempting to testify beyond the scope of a pharmacist. In 2018, a judge disqualified him an expert writing that “Dr. Buffington is not competent to testify regarding the standard of care – or breach thereof – by medical doctors, nurses, osteopathic physicians, or physician’s assistants, as these are different professions from that of a pharmacist.” 

In another case, a judge in 2017 said Buffington’s testimony “lacked sufficient evidence or analysis to back up the pharmacist’s conclusions. Buffington’s opinion is entirely without any intellectual rigor or any indicia of reliability.” The judge excluded Buffington’s testimony in a case about regulatory compliance for a medication guide.

The Judicial Conference knows there is a need to assist judges in applying the rules, and to that end, the Conference proposed amendments to the Federal Rules of Evidence in 2022. The Conference clarified language to emphasize the responsibility judges have as gatekeepers of expert testimony. The amendments will become law in December 2023 if the Supreme Court approves, and the 118th Congress passes them.

Sources:  ProPublica, Death Penalty Info