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Executions Unlikely for Rest of Year

Federal judge orders a delay in condemned killer Michael Morales' legal challenge to the state's use of lethal injections.

April 28, 2006|Henry Weinstein | Times Staff Writer

A legal challenge to California's lethal injection executions has been delayed until mid-September, making it highly likely there will be no more inmates put to death by the state for the remainder of this year and possibly longer.

The immediate consequence of the delay, ordered Thursday by U.S. District Judge Jeremy Fogel in San Jose, is that Michael A. Morales, who originally was scheduled for execution in February for the 1981 murder of Lodi teenager Terri Winchell, has at least several more months to live. The hearing on Morales' challenge to lethal injection originally had been set for next month.

Whichever way Fogel eventually rules on the challenge, an appeal is a virtual certainty, which makes it likely that there will no more executions until 2007 at the earliest, according to UC Berkeley law professor Frank Zimring, an expert on capital punishment.

"I think the smart money at this point would bet against any more executions in California in 2006, and I think it goes beyond that," Zimring said.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-capital punishment group in Sacramento, conceded it was "quite possible" there would be no more executions this year.

Morales, and other inmates across the country, have challenged lethal injection for possibly causing excessive pain to inmates. Critics say the first drug in the three-stage lethal injection protocol, a sedative, often fails to anesthetize the inmate, especially in the hands of untrained prison personnel.

Meanwhile, the second drug, a paralytic, immobilizes the inmate so he cannot display symptoms of the intense pain he experiences when the third, heart-stopping drug is administered, they say.

Fogel in February ordered the state to either alter the drug regimen or to furnish trained medical personnel to make sure Morales was unconscious when he was executed. Bound by the canon of medical ethics forbidding participation in killings, however, several anesthesiologists backed out of the procedure, and the execution was canceled.

The hearing reset for Sept. 19 will consider whether the state's procedures must be altered to meet constitutional muster. Morales' attorneys contend that the procedures put him at unacceptable risk of suffering excruciating pain, thus violating the constitutional ban against cruel and unusual punishment.

In another significant development, a ranking official of the California attorney general's office said Thursday that the state is "seriously considering" the use of a machine that officials say could help monitor a condemned inmate's level of consciousness during the execution procedure.

The machine, known as a bispectral index monitor, was first used in an execution last week in North Carolina in an attempt to make sure a condemned man was thoroughly sedated before the lethal drugs were administered. Attorneys for condemned inmate Willie Brown Jr., leading anesthesiologists and the company that made the machine had objected that it could not serve that purpose unless it was monitored by trained medical personnel. A federal appeals court upheld use of the machine in a sharply divided 2-1 opinion.

Dane Gillette, of the California attorney general's office, said California is now giving serious consideration to use of the machine. "Many states are, I am certain," he said in a phone interview.

Lethal injection is the predominant method of execution across the country, in use in 37 of the 38 death penalty states. In the past year, however, executions have been stayed in California, Florida, Maryland and Missouri because of litigation over the pain issue. If California seeks to use the bispectral index monitor, it will undoubtedly precipitate further litigation.

North Carolina introduced the machine earlier this month in an effort to meet the concerns of U.S. District Judge Malcolm J. Howard that inadequate anesthesia prior to execution would make condemned inmate Brown "suffer excruciating pain." The judge concluded that the machine could ensure that Brown was totally unconscious before the second and third drugs were administered. A federal appeals court upheld Howard's decision, without explanation.

But Judge J. Blane Michael issued a blistering dissent, saying that the finding that the bispectral index monitor alone could accurately verify Brown's level of consciousness was "contrary to the clear weight of the evidence."

Michael emphasized that the American Society of Anesthesiologists and the American Assn. of Nurse Anesthetists have promulgated standards advising against the use of such a machine "in isolation without other monitoring methods or interpretations by personnel with appropriate training in anesthesia."

The pitched battle that has emerged over lethal injection in recent months has reshaped the contours of the death penalty debate in California and across the country.

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