On April 30, Federal Public Defender Dale Baich presented a sworn statement to the U.S. District Court before Judge Neil Wake, in which Baich described the events surrounding the executions of his clients Robert Towery and Richard Bible.Baich recounts:
At approximately 11:17 a.m., Mr. Towery gave his last statement.
The evening prior to his execution, I had informed Mr. Towery what he could expect when ADC placed the intravenous (IV) catheters. Mr. Towery then made fists with both hands to show me the veins in each of his arms. He said “With veins like these, how can they miss.”
I advised Mr. Towery that if there were any problems with the procedure or if he had concerns with what was occurring as the IV lines were being inserted, that he should advise the ADC officials who were present in the execution chamber that he wished to speak to his attorney. I further told Mr. Towery if the ADC officials would not allow him to speak with his attorney that he should say words to that effect as part of his last statement.
Mr. Towery was concerned about speaking openly about the procedures, as he had been informed by ADC that his last words would be cut off if he made any statements against ADC.
This concern is consistent with what Richard Bible told me during a morning meeting I had with him on the day of his execution. The date was June 30, 2011. Mr. Bible said that he was told by an ADC official to keep his last statement short, and that if he was critical of the ADC, critical of law enforcement or made disparaging comments about the victim, the microphone would be cut off during his statement. Mr. Bible was also told he would have to rehearse his last statement with an ADC official.
Mr. Towery said that rather than directly state that he asked to talk to his lawyer during the IV insertion procedure, he would say something to the effect of “Hey Dale I should have called you.” He also said that if there were problems with the insertion of the IV lines or that if he was being hurt, he would use the word “mistake” as part of his last statement.
During Mr. Towery’s last words, he said “In the end, I should have called you Dale.” Based on my discussions with Mr. Towery, this phrase meant that he asked to have speak to his lawyers while the catheters were being placed but was denied access.
During Mr. Towery’s last words, he also said that he should have gone left and he went right. He went right when he should have gone left. He then went on to say he made “mistake, after mistake after mistake.” Based on my discussions with Mr. Towery, this phrase meant that there were problems or he was hurt during the insertion of the catheters.
In giving this statement, Baich was seeking a preliminary injunction to enjoin the execution of Samuel Lopez. Judge Wake denied the application, and the Ninth Circuit upheld his decision not to stop the execution, but there was enough concern about the Department of Corrections’ behavior that, of the 26 judges, 7 dissented and 3 recused themselves. I will write more about that soon.