Death row inmate Michael Morales will be executed next week under a new protocol to ensure that he cannot feel the drugs to be administered by injection, state officials said Wednesday.
In a procedure never before used in the United States, the state Department of Corrections will provide an anesthesiologist to monitor Morales' level of consciousness while the three-chemical potion is delivered into his veins.
U.S. District Judge Jeremy Fogel proposed the solution in response to defense attorneys' request to prevent the execution on grounds it would violate constitutional bans against "cruel and unusual punishment."
Morales' attorneys had argued that the standard combination of drugs -- barbiturates to put the inmate to sleep, an agent to paralyze his voluntary muscles and a chemical to induce cardiac arrest -- was prone to painful mistakes.
They pointed out that it was virtually impossible to know whether the barbiturates had rendered an inmate unconscious. In addition, because the paralytic drug freezes muscles, a prisoner would have no way of expressing pain caused by the drug that induces cardiac arrest.
Sharing those misgivings, Fogel told corrections officials to change the way they administer the fatal dose, or face a delay in the execution.
In a response issued Wednesday, state officials said two board-certified anesthesiologists would monitor Morales during the execution scheduled for Tuesday at San Quentin State Prison. One of them will be with Morales in the prison death chamber. The other will serve as a backup. The doctors' names were not made public.
But defense attorney David Senior suggested the remedy flies in the face of a doctor's Hippocratic oath to do no harm. "How will they be able to properly perform as physicians?" Senior asked.
Natasha Minsker, director of death penalty policy at the American Civil Liberties Union in Northern California agreed. "The state says a doctor will be there to monitor consciousness, but what does that mean?" she asked. "Will scientific instruments be used? Or will the doctor simply stand there watching?
"While I am pleased that we have a judge who has recognized a substantial likelihood of pain," she added, "trying to come up with a quick fix like this just doesn't seem appropriate."
Corrections officials were unable to explain how the procedure would work.
"I can't tell you what they will do; that is something the anesthesiologists will have to work out with the prison," said J.C. Tremblay, assistant secretary for the Department of Corrections. "Basically, the doctors will be brought in as experts to observe and then report back to the court."
In a separate blow to the defense, the California Supreme Court on Wednesday rejected Morales' challenge of a special circumstance that was pivotal in his death sentence: the false testimony of a jailhouse informant.
Morales, 46, was convicted of the 1981 rape and murder of Terri Winchell, a 17-year-old Lodi high school senior. Two years later, he was sentenced to death after informant Bruce Samuelson testified that Morales had boasted in a jailhouse conversation that he had planned to kill Winchell.
Samuelson said at the time that Morales was willing to discuss the crime because they spoke Spanish. A later investigation revealed that Morales does not speak Spanish.