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Lethal Injections Not Affected by Ruling, Lawyers Say : Capital punishment: Judge's ruling declaring the gas chamber unconstitutional will not halt legal alternative, according to attorneys involved in the appeal.

October 06, 1994|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

California may execute prisoners by lethal injection pending an appeal of a federal ruling that declared the gas chamber unconstitutional, lawyers involved in the appeal said Wednesday.

"This is not going to affect whether anyone gets executed or when they get executed," said Matthew Coles, an attorney for the American Civil Liberties Union, which filed the lawsuit to close down California's gas chamber. "It is just going to affect how they get executed."

In response to the ACLU lawsuit, the Legislature in 1992 amended the law to allow for lethal injection in addition to gas and to make either option mandatory in the event one should be declared unconstitutional.

Deputy Atty. Gen. Dane Gillette said Wednesday that the state is ready to proceed with lethal injection executions. It is possible but highly uncertain, he said, that some Death Row inmates may be turned down in their final appeals and be executed within the next year.

Two lawyers who argued in the ACLU case that lethal gas was cruel and unusual punishment scoffed at claims by Atty. Gen. Dan Lungren that Tuesday's ruling could "hold up" executions. Both lawyers called Lungren's assertions nonsense and election-year grandstanding.

Gillette, asked about Lungren's remarks, said they reflected concerns that death penalty opponents would try to use the ruling to attack the entire capital punishment law in another legal challenge. Although they would have no legal standing, he said, "that has not stopped them before."

The ACLU has no plans to challenge lethal injection in court, Coles said. Attacking lethal injection would be legally difficult, said Warren George, a private San Francisco lawyer who worked with the ACLU in the case, because the shot of poison is not administered until the inmate has been given barbiturates that induce unconsciousness.

During arguments before this week's decision by U.S. District Judge Marilyn Hall Patel, the ACLU presented evidence from prison doctors that inmates locked in the gas chamber remained conscious for about two minutes after breathing the lethal gas.

The evidence showed that the condemned clenched their fists, grimaced, gasped for air, strained at the straps and swung their heads from side to side as they struggled with death.

Neurologists, toxicologists and pathologists described these movements as evidence of acute pain, akin to what would be experienced in a massive heart attack, a drowning or suffocation.

Experts for the state contended that death by lethal gas was not particularly painful and cited experiments with laboratory animals and human subjects given less-than-fatal doses of cyanide. One expert described the contortions of gassed inmates as involuntary reflexes usually associated with unconsciousness.

The state plans to appeal Patel's ruling Friday. The U.S. 9th Circuit Court of Appeals could take several months to more than a year to rule.

The 9th Circuit decided a similar case in February, ruling that execution by hanging is constitutional. Gillette said Patel applied a different standard than the appellate court used.

But ACLU attorneys said they were encouraged by the 9th Circuit's ruling because it stressed that hanging produces rapid unconsciousness--not the two minutes of awareness possibly felt by inmates in the gas chamber.

"I think we have a better than even chance in front of the 9th Circuit," said George, whose firm donated its services to the ACLU. He noted that the 9th Circuit was split 6 to 5 in the hanging ruling, with Republican judges supporting the method and the Democrats insisting that it was unconstitutional.

Washington and Montana still allow executions by hanging, as California did until 1942. California replaced the gallows with the gas chamber for inmates sentenced after 1937 because lethal gas was considered more humane and less prone to mishap.

Other states also use lethal gas, and legal challenges against it are pending in Maryland and North Carolina. A U.S. District Court judge in Maryland rejected one challenge in June and relied "on many of the same affidavits" that Patel reviewed in the California case, Gillette said. That case is on appeal.

Gillette called Patel's ruling unprecedented. "No other court has found a method of execution to be unconstitutional," he said.

Patel's ruling was not the first of her decisions to spark controversy. She has upbraided federal prosecutors for talking to defendants without their lawyers and rejected the core of one of the largest sex discrimination suits in history. She also became the first federal judge to denounce the World War II internment of Japanese Americans.

According to a survey by the Recorder, a legal newspaper, the 9th Circuit reversed 23.6% of her decisions from January, 1985, to July, 1990. She ranked seventh-highest for reversals among the 17 judges surveyed in the number of reversals and decisions upheld.

Patel, appointed to the federal bench in 1980 by President Jimmy Carter, had served on the boards of the ACLU and the National Organization for Women.

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