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Hearing on state's lethal injection protocol delayed

Decision by a federal judge means the court's ban on executions could stretch to two years. He plans to visit the new death chamber.

September 15, 2007|Henry Weinstein | Times Staff Writer

A federal judge Friday postponed a major hearing on the state's new lethal injection protocol, making it highly likely that a court-ordered moratorium on executions in California will stretch to at least two years.

U.S. District Judge Jeremy Fogel in San Jose pushed the hearing back from Oct. 1 to Dec. 10 and 11. The judge also scheduled a formal visit Nov. 19 to a new death chamber under construction by the California Department of Corrections and Rehabilitation.

Executions were halted in February 2006 in response to condemned inmate Michael Morales' legal challenge to the state's lethal injection procedures. Fogel last December ruled that the procedures violated the constitutional bar against cruel and unusual punishment.

The state is trying to develop a new protocol, in part by building a death chamber to replace the one at San Quentin State Prison, which Fogel found was poorly lighted and designed as well as overcrowded.

Fogel's decision to postpone the October hearing came after a status conference with lawyers from the attorney general's office and Morales, who has been on death row for close to a quarter-century for the 1981 murder of Lodi teenager Terri Winchell.

California, like three dozen other states, uses a three-drug cocktail for lethal injections.

The first drug, sodium thiopental, is a fast-acting barbiturate that is supposed to render the condemned inmate unconscious before the other drugs -- pancuronium bromide, which paralyzes the body, and potassium chloride, which causes cardiac arrest -- are administered.

The critical issue in the case, Fogel wrote in his December ruling, was whether the procedure, as administered, "provides constitutionally adequate assurance that condemned inmates will be unconscious when they are injected" with the painful second and third drugs.

The judge said evidence developed in the case revealed that there were a number of "critical deficiencies" in how the state administers the procedure, including inconsistent and unreliable screening of execution team members, a lack of meaningful training for the team and improper mixing of the first drug.

In May, California corrections officials, after consulting with the governor's office and the attorney general's office, issued a new lethal injection protocol that they said "will result in the dignified end of life."

In July, however, Morales' attorneys asserted in a brief that the new procedures are "even more ill-conceived and deficient than the older versions."

The following month, Morales' attorneys requested that their challenge to the new procedure be postponed until May to allow for pre-hearing discovery.

One of the attorneys, David Senior, explained that state officials, in response to interrogatories, had indicated that the corrections department had not picked a new lethal injection team or a team leader; had not resumed work on a new execution chamber after it was halted amid controversy; and "have refused to identify who is responsible for constructing the chamber."

Senior said the two sides disagree about what material the state is obligated to turn over to Morales' lawyers in advance of the hearing. He said the attorney general's office had given the defense team a 157-page list of items that it considered legally privileged.

Deputy Atty. Gen. Michael Quinn countered in a reply that the hearing should not wait and that the state had turned over thousands of pages of material. On Friday, Quinn reiterated those positions and said the privilege claims had been pared to 104 pages.

Quinn also said it was his understanding that the new execution team would be selected by Oct. 1 and would start training the following week.

"What would be at issue at the hearing" in December are the differences between the new protocol and the old one and "whether the new one is sufficient to address" the deficiencies identified in the court's decision last December, Fogel said.

Also Friday, it was disclosed that a Superior Court judge in Marin County has set a hearing Oct. 24 to hear a companion lawsuit alleging that state officials violated the California Administrative Procedure Act when they devised the execution protocol. In June, Fogel said he would not issue a ruling on the legal challenge to the new execution protocol until the Marin County suit is resolved.

The judge was concerned that if he ruled first, the state court could "pull the rug out" by holding that corrections officials had violated state law.

Fogel expressed the hope Friday that a ruling would be issued in the state case before his hearings began Dec. 10.

--

henry.weinstein@latimes.com

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