Ohio prison officials claim that a recently executed inmate — who appeared to gasp for air during the 25 minutes it took to die — said his lawyer wanted him to put on a "big show" when he got the lethal injection.
But the lawyer's bosses say an internal investigation uncovered no evidence that convicted killer Dennis McGuire was coached to fake discomfort as a never-before-used drug cocktail coursed into his veins.
"Additionally, all known accounts from execution eyewitnesses report that Mr. McGuire appeared to be unconscious at the time he struggled to breathe," the office of the Ohio Public Defender said in a statement.
McGuire's Jan. 16 execution has been mired in controversy because he was the first death-row prisoner to be killed with a combination of midazolam and hydromorphone after the state ran out of its usual drug.
His lawyers had tried to stop the execution on the grounds it would trigger a cruel "air starvation," and media witnesses reported that McGuire did seem to struggle to breathe during the prolonged process.
His children are suing the state and the manufacturer of the drugs used, and the next prisoner slated for a lethal injection has asked a federal judge to declare Ohio's execution protocol violates the constitutional protection against cruel and unusual punishment.
Against that backdrop, the Columbus Dispatch obtained three prison incident reports from the eve of McGuire's execution that raised the question of whether his physical response to the drugs was genuine.
Two guards wrote that they overheard McGuire — who was sentenced to death for raping and stabbing a pregnant woman — tell his ex-wife that his lawyer told him to give a "thumbs up" sign after the injection began.
"If it wasn't for my daughter, I would really put on a show," McGuire allegedly said, according to the reports, which were also emailed by the state corrections department to NBC News.
Another prison staffer wrote that during a conversation with McGuire after visiting hours had ended, the condemned man told him that the lawyer, Rob Lowe, had told him that if started to "choke or jerk" he would call the governor, get the execution stopped and have a life-saving antidote administered.
"He also began saying that Mr. Lowe told him that if things look bad during this execution that he would be the sole reason that executions will no longer happen in Ohio and all his buddies on death row would be saved."
The report further quotes McGuire as saying: "He wants me to put on this big show in front of my kids, all right when I'm dying. I ain't gonna do this. It's about me and my kids, not him and his cause!"
The Office of Rehabilitation and Correction declined to comment beyond releasing the incident reports.
The Ohio Public Defender's office said its staffers had asked McGuire to give a thumbs up once the execution began so they would know exactly when he lost consciousness.
It took the accusation that McGuire was "encouraged to feign suffocation" seriously enough that it barred its staffers from the execution and put Lowe on administrative leave.
"The investigation — which was limited to OPD staff, documents and information — did not uncover evidence of wrongdoing," it said. Lowe was then removed from leave and is back at work.
An attorney for McGuire's family did not return a call.
But the executed man's federal public defender — who works for a different agency and represented McGuire when he sought a stay of execution — questioned whether the state was trying to deflect attention from what some people have called a botched execution.
"Is it coincidence or is it strategy on the part of the state Department of Rehabilitation and Correction to release these documents to the media now when they have egg all over their face about what actually happened?" said the federal attorney, Allen Bohnert.
He noted that defense lawyers have tried and failed to convince the state to institute some type of emergency measures to revive an inmate mid-execution, "so there is no reason we would lie to him and tell him there's an antidote."
Bohnert said it was possible McGuire "heard what he wanted to hear in those discussions," and pointed out that there was no attorney present at the time.
Bohnert, who did not witness the execution, said that even if McGuire was coached and did put on an act, it would reflect badly on the state, which had promised the cocktail would incapacitate someone within a minute.
No matter what, he said, the execution was a "horrific, agonizing failed experiment that should not be repeated."
A lawsuit against Ohio's new lethal-injection protocol, filed by 91 plaintiffs, is pending in federal court. Ohio Gov. John Kasich has not said whether he has any concerns about it in light of McGuire's case.