Government withheld medical records in rush to execute Kansas murderer, lawyers say

When the Bureau of Prisons finally turned over the records — after Purkey’s second execution date was set — they went to the government’s lawyers, who Purkey’s lawyers say failed to turn the records over to them.

by Dan Margolies, Kansas News Service

The government deliberately withheld medical records showing that Wesley Ira Purkey was incompetent to be executed before rushing ahead with his execution last month, Purkey’s lawyers contend in a legal filing in federal court in Washington, D.C.

The document, titled “Plaintiff Wesley Purkey’s Motion To Dismiss on the Ground of Mootness,” says that while Purkey’s claims “have become legally moot, the facts surrounding the circumstances of Mr. Purkey’s execution cannot and must not be similarly extinguished.”

Purkey admitted to abducting Jennifer Long as she was walking home from high school, raping and murdering her in his Lansing, Kansas, home and then dismembering her body. A federal jury convicted him in 2003 of kidnapping resulting in a child’s death and he was sentenced to death. His execution was originally set for December 13, 2019, but legal challenges had delayed it.

The motion filed by his attorneys Monday accuses the government of running roughshod over due process and withholding crucial evidence in its haste to execute Purkey.

The government issued Purkey’s second execution warrant on June 15, “setting forth an accelerated execution date only 30 days away, with approximately 20 minutes notice to his counsel, during a global pandemic, 16 years after Mr. Purkey was originally sentenced,” the motion states. “The warrant was issued on the very day that Mr. Purkey had reiterated his third (emphasis in original) request since September 2019 for medical records and testing among other long-awaited medical, psychiatric and prison surveillance records.”

Purkey’s lawyers say that even after setting his second execution date, the government balked at providing his lawyers access to his medical records and to medical tests and imaging relevant to his incompetency claim. On July 2, the Bureau of Prisons finally turned over the records — but not to his lawyers. Rather it provided them to the government’s lawyers, who Purkey’s lawyers say failed to turn the records over to them.

“Defense counsel deliberately withheld that information from production, failing entirely to produce it before the Government executed Mr. Purkey,” the motion states.

A physician retained as an expert witness by Purkey’s lawyers determined that, based on an MRI, Purkey had significant brain abnormalities “consistent with cognitive impairment such as vascular dementia and other conditions.”

Purkey’s lawyers argued that Purkey was mentally unfit to be put to death because he had dementia and a documented history of mental illness, didn’t understand that his execution was punishment for his capital crime and couldn’t effectively communicate with his lawyers.

In a landmark decision in 1986, the U.S. Supreme Court ruled in Ford v. Wainwright that the Constitution prohibits putting to death a prisoner who is insane and not aware of his impending execution and the reasons for it.

Government officials did not respond to KCUR’s requests for comment.

On the day Purkey was scheduled to be executed, U.S. District Judge Tanya S. Chutkan halted the procedure, finding Purkey had provided substantial evidence of his incompetence. The injunction was upheld by a federal appeals court, only to be overturned the next morning by the Supreme Court.

Purkey’s lawyers then sought habeas corpus relief and a stay of execution in federal court in the Southern District of Indiana, where Purkey’s execution was scheduled to take place. The judge, a Trump appointee, initially granted a temporary stay but a few hours later vacated it and rebuked Purkey’s lawyers for not filing his incompetency claim there in the first place.

Purkey’s lawyers immediately appealed to the Seventh Circuit Court of Appeals. But even as that appeal was pending, the government went ahead with Purkey’s execution by lethal injection a few hours later, after the Supreme Court, in an unsigned 5-4 ruling, vacated the three federal court decisions halting his execution.

Purkey was pronounced dead at 8:19 a.m. on July 16 at the Federal Correctional Complex in Terre Haute, Indiana.

The Supreme Court’s two-sentence decision gave no explanation for its decision. In a dissenting opinion, Justice Sonia Sotomayor wrote that Purkey’s execution, “despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.” She was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

“He was executed without being afforded his rights to due consideration of all evidence by this Court (including, if necessary, at an evidentiary hearing) and to a merits adjudication of his competency vel non [or not] to be executed,” Purkey’s lawyers conclude in their motion. “These are the reasons that the matter in front of this Court is — terribly and irreversibly — moot.”

Purkey was one of four federal prisoners scheduled to be executed after Attorney General William Barr in June directed the Bureau of Prisons to schedule their executions — the first to be carried out by the federal government in 17 years. Purkey, 68, was the second prisoner to be executed; the fourth prisoner, Keith Dwayne Nelson, is scheduled to be put to death on Aug. 28.

Dan Margolies is senior reporter and editor at KCUR. He can be reached by email at dan@kcur.org or on Twitter @DanMargolies. The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy. Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.
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