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Ruling Halts State Method Of Execution

A judge says California's injection procedure is cruel and unusual.

`But It Can Be Fixed'

Concern is over pain from 3-drug cocktail.

December 16, 2006|Henry Weinstein | Times Staff Writer

A federal judge in San Jose ruled Friday that California's application of its lethal injection death penalty procedure violates the constitutional prohibition against cruel and unusual punishment.

The state's system "is broken, but it can be fixed," U.S. District Judge Jeremy Fogel said in a 17-page ruling that makes it unlikely that any death sentences will be carried out in California in the near future. The high-profile case had effectively halted executions since February, but Fogel's ruling left the door open for the resumption of executions by lethal injection if the state comes up with a revised procedure the judge finds constitutionally acceptable.

Fogel's ruling came the same day that Florida Gov. Jeb Bush declared a halt to executions there in the aftermath of a botched lethal injection this week.

The two actions were the latest development in what is now the central legal issue in the long-running battle over capital punishment in the United States: whether lethal injections are being administered in a humane, constitutional manner. Challenges to lethal injections have resulted in stays of execution in states around the country, and Friday's developments will probably spur more challenges, legal experts said.

California's current lethal injection procedure, like that in three dozen other states, calls for a three-drug cocktail. The first drug, sodium thiopental, is a fast-acting barbiturate that is supposed to render the condemned inmate unconscious before the second two drugs -- pancuronium bromide, which paralyzes the body, and potassium chloride, which causes cardiac arrest -- are administered.

Fogel acted in response to a suit filed by lawyers for condemned inmate Michael Morales, who has been on death row for more than 20 years for the brutal slaying of Lodi teenager Terri Winchell. The thrust of Morales' suit is that the state does not properly administer enough sodium thiopental to ensure that the inmate does not feel excessive pain when the potassium chloride is administered.

Fogel, who visited the death chamber in San Quentin and held a four-day hearing in San Jose in September, said the case generated evidence that "is more than adequate to establish a constitutional violation."

His decision was replete with stinging criticisms of state officials for failing to take the necessary steps to correct problems in the procedure -- steps the judge urged them to take in February.

"Given that the state is taking a human life, the pervasive lack of professionalism in the implementation" of the lethal injection protocol is "at the very least deeply disturbing," Fogel wrote.

Morales' execution was scheduled for February, but the state postponed it after being unable to meet conditions imposed by the judge, who became concerned that the procedure was not working correctly.

"As this court noted" in its February order, "anomalies in six execution logs raise substantial questions as to whether certain inmates may have been conscious when pancuronium bromide or potassium chloride was injected," Fogel wrote. "These substantial questions remain unanswered."

Fogel emphasized that Dr. Robert C. Singler, the state's medical expert, said that another condemned inmate, Robert Lee Massie, "well may have been awake when he was injected with potassium chloride" during his March 27, 2001, execution. Singler testified that he could not render a definitive opinion because of the poor quality of the execution logs. He also testified that it would be "unconscionable" to inject a conscious person with the amount of potassium chloride prescribed by the protocol.

The threshold issue in the case, Fogel said, is whether the procedure, as implemented, "provides constitutionally adequate assurance that condemned inmates will be unconscious when they are injected" with the second and third drugs.

He said "the evidence shows that the protocol" and the state's implementation of it "suffer from a number of critical deficiencies."

Among those he cited are:

* Inconsistent and unreliable screening of execution team members. The judge noted that a prison guard led the execution team despite the fact that he was diagnosed with and disabled by post-traumatic stress disorder as a result of his prison experiences, and found working on the execution to be the most stressful responsibility a prison employee could have.

* A lack of meaningful training, supervision and oversight of the execution team. The judge noted that team members "almost uniformly have no knowledge of the nature or properties of the drugs that are used or the risks or potential problems associated with the procedure."

* Inconsistent and unreliable recordkeeping. The judge said there were "no contemporaneous records showing that all of the sodium thiopental in the syringes used for injections actually was injected, and in fact, testimony revealed that in at least several executions it was not."

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