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Sparring Over Lethal Injection

At a hearing on how California inmates are executed, an anesthesia expert says they might awaken during the process and die in pain.

September 27, 2006|Henry Weinstein and Maura Dolan | Times Staff Writers

SAN JOSE — During the first day of a trial on the constitutionality of California's lethal injection method of execution, an expert on pharmacology said the drug used to anesthetize inmates wears off "extremely fast" and potentially exposes prisoners to painful deaths.

"There is a possibility that inmates could emerge [from unconsciousness] and experience a painful execution," Dr. William Ebling, who has done extensive research on anesthetics, testified Tuesday in a San Jose federal courtroom.

He called California's execution procedure a "one-size-fits-all" plan that ignores the fact that drug dosages must be adjusted to a person's size, health history and other factors.

Ebling was among several witnesses -- including several who had viewed executions -- to portray lethal injection as fraught with uncertainty, a process that appears to render some prisoners clearly unconscious before death while others heave and convulse in what looks like agony.

The four-day trial here is one of several court proceedings around the nation in which lethal injection is under challenge as a violation of the U.S. Constitution's ban on cruel and unusual punishment. Executions have been put on hold in California pending the outcome of the litigation, brought by condemned inmate Michael Morales, who was sentenced to death for the 1981 murder of Terri Winchell, 17, in Lodi.

U.S. District Judge Jeremy Fogel stressed that condemned inmates are not entitled under the Constitution to a painless death.

"This is not about whether it is appropriate or inappropriate for the person being executed to suffer pain," he said. "It is inaccurate to say that an execution has to be painless," but it cannot under the law "inflict severe degrees of pain."

Like three dozen other states, California uses a three-drug cocktail for executions: sodium thiopental, a barbiturate anesthetic; pancuronium bromide, which paralyzes the inmate; and potassium chloride, which causes cardiac arrest. Critics say the anesthetic may fail, and thus the paralytic would merely mask the intense pain the inmate experiences from the heart-stopping chemical.

Senior Assistant Atty. Gen. Dane Gillette, lead lawyer for the state, said his side would demonstrate that a new procedure that California adopted in response to questions about the drug cocktail -- requiring a continuous infusion of anesthetic rather than a one-time delivery -- would meet constitutional standards. Gillette said the state would not concede that the former procedure was unconstitutional but acknowledged a problem in the execution last year of Stanley Tookie Williams, a gang leader and murderer.

In that case, the execution team failed to insert a backup line for the anesthetic -- a fact that Morales' lawyers uncovered in a deposition. Gillette called the episode "a lesson well learned, one that will never happen again."

John Grele, one of Morales' lawyers, said his side would present "disturbing and frightening" information about how lethal-injection executions have been conducted. He also asserted that California's new procedure, adopted since Morales' execution was called off in February, was drawn up hastily and primarily by lawyers -- not experts on the use of the drugs.

"As a result, we have a protocol that, if it's going to effective, it will be effective by chance alone," Grele said.

Ebling, the expert on pharmacology, said the anesthetic employed in California was an older drug that was used in medical procedures to induce anesthesia and typically was followed by other drugs to sustain unconsciousness.

Fogel asked him if there was a second drug that could be given intravenously to ensure that an inmate did not regain consciousness. Ebling said he could not answer the question with any certainty.

Asked by the judge whether it would be possible to kill someone just using thiopental or another barbiturate, Ebling responded in the affirmative. But, he quickly added, it would take longer -- perhaps 30 to 40 minutes -- and he said "it's an ugly death," referring to how the inmate's respiratory system would collapse.

Supervising Deputy Atty. Gen. Ron Mathias pointed out that anesthesiologists treating patients not slated for death must wrangle with how much of a drug to give to avoid pain while safeguarding them.

Executions are "not half as hard," Mathias said.

The state's new procedure for lethal injection requires that the anesthetic be administered slowly over the course of the execution. Ebling testified that doctors would never require that an anesthetic be administered "slowly" because that has no meaning in science.

In fact, he said, "faster is better" as long as the other two drugs are also given in rapid succession. He said a review of execution logs showed different intervals between administration of the drugs in different executions.

Ebling also said that a person experiencing high stress would be harder to anesthetize than a calm patient and that severe pain could cause an inmate to regain consciousness.

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