Sure, Firm Hit Bumps, But Powell Goldstein Looks to Bright Future

To the editor:

As someone who has been a partner in the Washington office of Powell Goldstein for 22 years, I didn’t recognize the firm or the office depicted in the article “Defections, Merger Talk at Powell” (Jan. 14, Page 1). For that reason I would like to respond, if not to all of the particular statements made in the article, at least to the misleading picture of the office as a whole.

The reporter who wrote the article was the latest in a long series of Legal Times reporters who have written about Stuart Eizenstat leaving to join the Clinton administration — over 14 years ago! — and the international group leaving in 2002. Those events, while true, are not relevant to our firm in 2008. (These stories also raise another question: Why can’t Legal Times hold on to reporters? Is there a problem? There might be a story there.)

More seriously, what was missing from the article was any real discussion of what our office is like today. The article was correct that tax is our largest and most profitable practice, but it didn’t mention that the most profitable components of that practice remain in place. As to our health practice, much of it continues as well in terms of number of attorneys and revenue. We certainly would have preferred if Larry Gage, et al., had remained with us, but to suggest that those departures may “cripple” our health practice is a serious misstatement. We also have profitable international, capital markets/real estate, litigation, and intellectual property practices. While we have fewer attorneys than a few years ago, we have a strong core who are determined to maintain and grow what has been a very good place to work. We have new opportunities to grow our office, and we have the full support of the firm.

It is certainly true that Powell Goldstein has given increased emphasis to productivity and profitability. Is there a firm in town that is not doing that? Over the past year, that emphasis has worked for our firm. In 2007, our profits per partner and revenue per lawyer increased significantly. The former associates named in the article who complained about that emphasis are entitled to their opinions, but it is worth noting that none of them work at law firms anymore. Private practice, even in a firm as supportive as ours, is not for everyone.

This is not intended to be a Pollyanna defense of our firm. We face challenges similar to those faced by most other firms our size that operate in our markets. Still, because of the caliber of our attorneys and our practice areas, we believe we have a good future as an office and as a firm. The positives are worth watching — not only the bumps in the road.

Alan K. Parver
Powell Goldstein
Washington, D.C.

The Truth Is That Executions Go Wrong

To the editor:

Attending oral argument earlier this month in Baze v. Rees, I was impressed with the oral advocacy skills of the lawyer, Roy Englert Jr., hired by the Commonwealth of Kentucky to defend its three-drug protocol for lethal injection. Nevertheless, much of what Englert writes in his response (“Ten Myths About the Needle,” Jan. 14, Page 34) to my Legal Times commentary (“Please Ignore the Pain,” Jan. 7, Page 36) is not a fair representation of the facts and requires rebuttal. Here’s the truth about what we know and do not know about lethal injection.

Truth 1: In adopting lethal injection, states did not engage in medical or scientific study or investigation of the new method.

Don’t take my word for it. The U.S. Court of Appeals for the 9th Circuit concluded in Beardslee v. Woodford (2005) that “[t]he history of the use of the three drug protocol gives some force to [the] argument that … the precise protocol was never subjected to the rigors of scientific analysis.” And the trial court in Baze found “scant evidence that ensuing States’ adoption of lethal injection was supported by any additional medical or scientific studies. … [T]he various States simply fell in line, relying solely on Oklahoma’s protocol.” I am aware of no court findings to the contrary.

The “extensive studies” by Florida and Tennessee commissions that Englert mentions occurred only after extensive litigation in both states and a horribly botched execution in Florida. Further, Tennessee’s commission recommended that the state switch to a single-drug formula (similar to that used in animal euthanasia) because it is significantly less dangerous. Prison officials rejected this recommendation, a decision that a Tennessee federal judge later found had no valid justification.

Truth 2: We know that executions go wrong.

Englert leaves the impression that the Death Penalty Information Center’s list of botched executions is exhaustive, when the Web site clearly states that the list is “not intended to be a comprehensive catalogue of botched executions, but simply a listing of well-known examples.” He also doesn’t address the evidence of inadequate anesthesia revealed in recent judicial inquiries into execution procedures, including the 2006 findings of a California federal trial court that six out of 11 executed inmates may not have been sufficiently anesthetized.

Truth 3: We do not know the true number of botched lethal injections.

Even if the DPIC list that forms the basis for much of Englert’s argument were a complete account of acknowledged botched lethal injections, most botched lethal injections are likely to go undetected. Because the second drug paralyzes inmates before they are killed, only a subset of executions will go wrong in a manner visible to observers. For that reason, and because states routinely fail to keep or release accurate execution logs, it is exceedingly difficult to know the true incidence of botched executions.

The inability of any lay observer (such as a warden) to know whether a paralyzed individual is consciously suffering is precisely what makes the use of a paralytic so dangerous. When, as Englert points out, a paralytic is used in human euthanasia in the Netherlands, a doctor monitors the patient to ensure there is no conscious paralysis. Not so in execution settings.

Truth 4: There is a form of lethal injection that does not carry a risk of unnecessary pain.

All experts in Baze agreed that the one-drug formula works. This undisputed fact is amply supported in practice: Euthanasia by an overdose of barbiturate is not used (in Englert’s words) on “some animals.” It is the American Veterinary Medical Association’s preferred method of euthanasia for animals such as dogs and large primates, and it is required in Kentucky animal shelters.

Truth 5: The political process has failed.

Not a shred of evidence suggests that state policy-makers thoughtfully decided to use the paralytic agent because they wanted to protect the “dignity” interests of inmates who might otherwise convulse while dying. Indeed, not a shred of evidence suggests that the three-drug protocol for lethal injection is the reasoned “policy judgment of the states.” In fact, only three states legislatively specify a three-drug protocol, and a majority do not specify any drug or drug type at all, requiring only that execution be by “lethal” or “intravenous” injection.

In any event, the Eighth Amendment is a limitation on states’ ability to impose punishments that may inflict severe pain. An unnecessarily painful procedure is still unconstitutional, even if states gave this procedure thoughtful consideration, which they most certainly did not.

Alison J. Nathan
Visiting Assistant Professor
Fordham University School of Law
New York, N.Y.