{"id":51622,"date":"2023-04-30T16:24:02","date_gmt":"2023-04-30T23:24:02","guid":{"rendered":"https:\/\/www.politicsplus.org\/blog\/?p=51622"},"modified":"2023-04-30T16:24:02","modified_gmt":"2023-04-30T23:24:02","slug":"everyday-erinyes-368","status":"publish","type":"post","link":"https:\/\/www.politicsplus.org\/blog\/2023\/04\/30\/everyday-erinyes-368\/","title":{"rendered":"Everyday Erinyes #368"},"content":{"rendered":"

Experts in autocracies have pointed out that it is, unfortunately, easy to slip into normalizing the tyrant, hence it is important to hang on to outrage. These incidents which seem to call for the efforts of the Greek Furies (Erinyes) to come and deal with them will, I hope, help with that. As a reminder, though no one really knows how many there were supposed to be, the three names we have are Alecto<\/span><\/strong>, Megaera<\/strong><\/span>, and Tisiphone<\/span><\/strong>. These roughly translate as “unceasing,” “grudging,” and “vengeful destruction.”<\/p>\n

This week, ProPublica is concerned about lethal injection. And heaven knows that is a problem (not that all capital punishment is not a problem, and ProPublica is well aware of that. But the abuses of lethal injection do cry out to heaven.) And I knew before I saw the title of this article that it would be about lethal injection – because it was the second article in the newsletter, and the first one was obviously about lethal injection. But the title did strike me as having multiple applications, and not least in the area of women’s health. And in other areas, including some that have not occurred to me.<\/p>\n

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Final scene from Theodora (Handel) as staged by Peter Sellars.
He chose modern time and allusions to Texas to emphasize the barbarity of lethal injection. Photo by Alastair Muir\/Shutterstock<\/p><\/div>\n

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\u201cA Courtroom Is a Really Lousy Place to Decide Science\u201d<\/h1>\n

by Lauren Gill and Daniel Moritz-Rabson<\/p>\n

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for The Big Story newsletter<\/a> to receive stories like this one in your inbox<\/em>.<\/p>\n

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In 2017, as lawyers for prisoners in Ohio sought to spare their clients from lethal injection, they challenged one of the state\u2019s key witnesses: Daniel Buffington<\/a>.<\/p>\n

As he had done elsewhere, the Florida-based pharmacist had submitted written testimony<\/a> saying that prisoners would not feel pain from the three-drug cocktail administered by executioners. But the lawyers for the men on death row argued that Buffington was unqualified to testify in an upcoming hearing, noting that he had not administered general anesthesia or conducted research on midazolam, the key sedative in the execution protocol.<\/p>\n

U.S. Magistrate Judge Michael Merz denied the motion to bar Buffington\u2019s testimony. And when prisoners\u2019 lawyers challenged the pharmacist again in court, the judge stood his ground.<\/p>\n

\u201cHe\u2019s certainly better able to understand and explain induction of anesthesia than I am,\u201d the judge said of Buffington. \u201cI 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\u2019s far less than this witness has.\u201d<\/p>\n

Merz admitted Buffington as an expert witness in that proceeding and considered his testimony.<\/p>\n

Legal experts say such exchanges illustrate a critical weakness in the judicial system: While the law relies in part on lawyers to scrutinize experts, judges must also evaluate a host of technical issues for themselves, weighing questions like whether a forensic technique is legitimate science or whether a particular drug will anesthetize a prisoner. And some experts say jurists are not always well equipped to do so.<\/p>\n

\u201cIt\u2019s very, very hard,\u201d Patrick Schiltz, the chief U.S. district judge for the District Court of Minnesota, said in a telephone interview. Schiltz is also the chair of the advisory committee on evidence rules for the Judicial Conference of the United States, the governing body of the federal court system.<\/p>\n

Before 1993, judges had to decide only if the testimony of an expert was consistent with generally accepted methodologies in the field. That year, though, the Supreme Court issued a landmark decision in the case Daubert v. Merrell Dow Pharmaceuticals Inc., setting a new standard for federal jurists evaluating scientific testimony. The ruling instructed federal judges to rigorously scrutinize the science directly, considering factors like whether the expert\u2019s theory had undergone peer review. Six years later, in a 1999 ruling<\/a>, the court strengthened judges\u2019 gatekeeping power by applying the standard to all expert witnesses, not just those giving scientific testimony.<\/p>\n

Together, these mandates presented a significant challenge for judges, particularly in the arena of capital punishment and lethal injection, where debates often involve complex and evolving science.<\/p>\n

\u201cSometimes we have really, really hard technical issues,\u201d Schiltz said. \u201cAnd it is a criticism of Daubert that it asks the judges to do something that judges aren\u2019t particularly well suited to do.\u201d<\/p>\n

Jules Epstein, a professor at Temple University\u2019s law school, was more blunt. \u201cA courtroom is a really lousy place to decide science,\u201d he said.<\/p>\n

Complicating matters is the fact that a significant portion of the judiciary has inconsistently applied the rules for admitting expert witnesses. Federal judges are supposed to act as gatekeepers that consider whether there\u2019s more than a 50% chance that the expert\u2019s opinion is reliable, a standard known as the preponderance of the evidence. But one recent study of more than 1,000 federal court opinions determining the admissibility of expert testimony in 2020 found that in 13% of cases, the standard for admissibility used was less stringent than the law demands, and judges actually presumed that the expert\u2019s testimony would be admissible.<\/p>\n

In bench trials, which take place in front of a judge instead of a jury, judges also can allow experts to testify, then decide later how much weight to give their testimony. This has happened at least twice in method of execution cases where states have hired Buffington.<\/p>\n

A judge\u2019s initial decision on an expert witness can have far-reaching consequences. Legal experts told ProPublica and Type Investigations that jurists look to what other judges decided in past cases when they are weighing an expert\u2019s qualifications. \u201cBeing admitted once as an expert essentially guarantees acceptance going forward,\u201d Chris Fabricant, the director of strategic litigation at the Innocence Project, wrote in an email.<\/p>\n

As ProPublica and Type have reported, seven states have hired Buffington to vouch for their execution protocols since 2015, when he first appeared in a lethal injection case. Judges have allowed him to testify in nearly every instance, with the exception of the Ohio case, where Merz later excluded him. Even then, it was not due to his qualifications but because he did not list his prior expert testimony in a way that complied with federal rules. (Merz declined to comment on the case, saying the court\u2019s practice is not to speak about past decisions. Buffington has said in court that opposing counsel took issue with the formatting of his disclosure form. \u201cThat information wasn\u2019t conveyed in time to reformat the form,\u201d Buffington testified in Arkansas in 2019. \u201cWe were working on that, but the judge made the decision that there was a time threshold and precluded on that.\u201d)<\/p>\n

Buffington declined to be interviewed about the findings of the ProPublica-Type investigation, but a spokesperson for the pharmacist said Buffington has significant training and professional expertise in the areas of his testimony, including pharmacology and toxicology, and has held positions over the years in various medical organizations, including the American Medical Association and the American Pharmacists Association. \u201cDr. Buffington\u2019s pharmacology training and professional experience make him well qualified to provide expert opinions on medicines and their effects in a wide range of areas,\u201d the spokesperson wrote. \u201cThe core training, curriculum and clinical practice experience within the Doctor of Pharmacy degree and practice of pharmacy is centered on the domain of pharmacology.\u201d<\/p>\n

The spokesperson also dismissed the criticism by prisoners\u2019 experts. Disagreement between expert witnesses, the spokesperson said, \u201cis a hallmark of the American justice system. It is expected and utterly unremarkable that for every case in which Dr. Buffington served as an expert witness, the opposing side will disagree with his testimony.\u201d<\/p>\n

In cases unrelated to lethal injection, however, some judges have also challenged Buffington\u2019s credentials, criticizing him for crafting what they considered to be thinly researched opinions and for attempting to testify beyond the scope of his expertise.<\/p>\n

In 2018, for instance, a judge found him unqualified to testify as an expert in a case brought by the widow of a veteran accusing the Department of Veterans Affairs of negligence in her husband\u2019s death. \u201cDr. Buffington is not competent to testify regarding the standard of care \u2014 or breach thereof \u2014 by medical doctors, nurses, osteopathic physicians, or physician\u2019s assistants, as these are different professions from that of a pharmacist,\u201d wrote Judge James Randal Hall, chief U.S. District Court judge for Georgia\u2019s Southern District. (Neither Hall\u2019s office nor Buffington responded to requests for comment about the ruling.)<\/p>\n

In another case, a judge scoffed at Buffington\u2019s work, which he said lacked sufficient evidence or analysis to back up the pharmacist\u2019s conclusions. \u201cBuffington\u2019s opinion is entirely without any intellectual rigor or any indicia of reliability,\u201d wrote U.S. Magistrate Judge Mark Lane, who in 2017 excluded Buffington\u2019s testimony in a case about regulatory compliance for a medication guide. (A spokesperson for Buffington said Buffington \u201ctestified to specific FDA guidelines\u201d and the judge\u2019s statement \u201ccontradicted the FDA\u2019s established requirements.\u201d)<\/p>\n

The Judicial Conference has recognized a need to clarify the rules for judges. Last year, it proposed amendments to the Federal Rules of Evidence, clarifying language to underscore the responsibility that judges have to be gatekeepers of expert testimony. The amendments will go into effect in December 2023 if the Supreme Court adopts them and Congress does not reject them.<\/p>\n<\/div>\n