Missouri's execution protocol allows for "surgery without anesthesia" if the typical process of finding a suitable vein to inject the lethal drug doesn't work, lawyers for a death row inmate said in an appeal aimed at sparing his life.
, 52, is scheduled for execution Tuesday for killing his cousin and her husband at their central Missouri home in 2006. His attorneys are seeking clemency from Gov. Mike Parson (R) and have several appeals pending.
A federal court appeal focuses on how Missouri injects the fatal dose of pentobarbital. The written protocol calls for insertion of primary and secondary intravenous lines. But it offers no guidance on how far the execution team can go to find a suitable vein, leaving open the possibility of an invasive "cutdown procedure," Dorsey's attorneys said.
The procedure involves an incision that could be several inches wide and several inches deep. Forceps are used to tear tissue away from a vein that becomes the injection point.
"It's surgery," said Arin Brenner, a federal public defender and one of the attorneys representing Dorsey. "It would be surgery without anesthesia."
Brenner said Dorsey faces a higher-than-normal risk of needing a cutdown because he is obese. His veins also might be compromised because he is diabetic and a former IV drug user.
A spokesperson for Attorney General Andrew Bailey didn't comment but referred to the state's response to the appeal.
"Cut-down procedures are rarely, if ever, used under Missouri's execution protocol," the response stated. "And in the event that a cut-down procedure were necessary, medical personnel have access to pain relieving medications."
Medication would be inadequate and if the procedure is necessary, Dorsey should receive a local anesthetic, said Megan Crane, another of his attorneys.
"It is extremely painful," Crane said. "Even if given an oral pain relief or an opioid, that will not relieve the pain."
Lawyers for Dorsey say use of the surgical procedure would violate his constitutional guarantee against cruel and unusual punishment, and his right to religious freedom because it would prevent him from having meaningful interaction with his spiritual adviser, including the administration of last rites.
Missouri's execution process is shrouded in secrecy, so it's impossible to know if, or how often, cutdown procedures have been required. No independent observer sees the IV line inserted. The spiritual adviser doesn't enter the room until the preparation is complete. Witnesses sit in dark rooms with curtains drawn until corrections officers open them seconds before the drug is injected.
Attorneys for Dorsey wonder if a cutdown procedure was used in January 2023 when was executed. It was believed to be the first execution of an openly transgender person in the U.S.
The Rev. Lauren Bennett of St. Louis served as McLaughlin's spiritual adviser. She recalled McLaughlin saying, "Ouch, ouch, ouch. It hurts," but said McLaughlin was unable to explain the cause of her pain before her death.
Issues with the IV have been problematic in executions elsewhere.
In 2014, Oklahoma inmate was declared dead 43 minutes after his execution began, at times writhing in pain and clenching his teeth through the process. A showed that the execution team repeatedly failed to insert an IV line in his arms, jugular vein, foot, and subclavian vein in the upper torso, before eventually running a line through a vein in Lockett's groin.
The review found that Lockett died after the line came loose, and that the deadly chemicals were pumped into the tissue surrounding the injection site instead of directly into his bloodstream. There is no indication in the report that Lockett was ever given an anesthetic.
In 2022, it took more than 3 hours to execute in Alabama. The state said the process was delayed because of difficulties establishing an IV line. Joel Zivot, MD, of Emory University School of Medicine in Atlanta and an expert on lethal injection who witnessed the private autopsy, said he saw "multiple puncture sites on both arms" and two incisions in the middle of the arm, which he said were indications of efforts to perform a cutdown. It's unclear if James received anesthesia.
Messages were left Friday with corrections officials in Oklahoma and Alabama.
Dorsey, formerly of Jefferson City, was convicted of killing his cousin, Sarah Bonnie, and her husband, Ben, on Dec. 23, 2006, at their home near New Bloomfield. Prosecutors said that earlier that day, Dorsey had called Sarah Bonnie seeking to borrow money to pay two drug dealers who were at his apartment.
Dorsey went to the Bonnies' home that night. After they went to bed, Dorsey took a shotgun from the garage and killed both of them before sexually assaulting Sarah Bonnie's body, prosecutors said.
Sarah Bonnie's parents found the bodies the next day. The couple's 4-year-old daughter was unhurt.
In the clemency petition, 72 current and former state correctional officers asked Parson, a former county sheriff, to commute Dorsey's sentence to life in prison, citing his virtually spotless record of good behavior while in prison.
"The Brian I have known for years could not hurt anyone," one officer wrote. "The Brian I know does not deserve to be executed."
A spokesperson said Parson is still reviewing the clemency request.
An appeal to the U.S. Supreme Court centers on the $12,000 flat fee for Dorsey's court-appointed trial attorneys. The appeal argued that with the flat fee, his lawyers had a financial incentive to resolve the case quickly. They encouraged Dorsey to plead guilty, but with no demand that prosecutors agree to life in prison instead of the death penalty.
Dorsey's attorneys also argued that the Missouri Department of Corrections' acting director, Trevor Foley, is unqualified to oversee an execution because he has not been confirmed by the Missouri Senate since his appointment in December.
The Attorney General's Office said in a court filing that acting directors must be allowed to carry out functions or government could be impeded. A state court sided with the Attorney General's Office this week, but Crane said an appeal to the Missouri Supreme Court is planned.