Getting the Death Penalty, could hurt

U.S. Judge to Open Rigorous Review of Lethal Injection

Federal judge will open four days of hearings focusing on a killer's claim that lethal injection is cruel and unusual punishment.

September 26, 2006

California's execution of condemned inmates by lethal injection will be put to its most stringent test ever at a hearing scheduled to start today in San Jose federal court.

Attorneys for Michael Morales, who was sentenced to death for the 1981 murder of Terri Lynn Winchell in Lodi, will try to show that California's procedures violate the 8th Amendment to the Constitution because they may inflict unreasonable pain upon inmates.

The case has ramifications not only for the 638 individuals scheduled to die in California but for inmates in other states, including Maryland and Missouri, where court challenges to lethal injection are also pending.

Fordham University law professor Deborah Denno, an expert on methods of punishment, said the California case is pivotal because U.S. District Judge Jeremy Fogel has gone beyond judicial efforts in other states to delve into how lethal injection works, including the unusual step of visiting the execution chamber at San Quentin earlier this year. The issue may wind up before the U.S. Supreme Court.

Fogel has scheduled four days of hearings, allotting himself six hours to pose questions to members of the execution team at San Quentin and to medical experts. The lawyers will also question witnesses.

"What's at stake in this hearing is whether or not a judicial officer is willing to take a very sober, extremely hard constitutional line on the administration of lethal injection in California," said Elisabeth Semel, who runs the death penalty clinic at UC Berkeley's Boalt Hall School of Law.

"One thing that sometimes get lost, or confused, is if the state wants to continue to execute people, it is the responsibility of the state to institute a procedure that meets the requirements of the 8th Amendment," which bars cruel and unusual punishment, Semel said.

Nathan Barankin, a spokesman for Atty. Gen. Bill Lockyer, whose lawyers are defending the California procedure, offered a contrary view.

"This is a very straightforward case — whether California's existing lethal injection protocol puts Morales at risk of suffering cruel and unusual punishment," Barankin said. "It is his burden to prove that to the court, and we are confident that the state's protocol is the most humane method of carrying out this criminal sentence."

Dane Gillette, California's senior assistant attorney general, who heads the office's death penalty unit, added: "We believe that California's current lethal injection protocol is constitutional, as was the old one, and that the hearing will establish that fact."

But Morales' legal team believes "that we will establish that California's execution protocol is so poorly designed, managed and staffed that the California Department of Corrections and Rehabilitation is institutionally unable to ensure that executions are performed humanely," said Washington, D.C., attorney Ginger Anders.

Barbara Christian, mother of the slain teenager, stressed Monday that she is not concerned with whether Morales suffers.

"As a mother, I don't care what kind of pain Morales feels because of what he did to my daughter," Christian said in a formal statement released by her attorney, Gloria Allred. "He showed no mercy when she cried out for it. He deserves no mercy." According to testimony introduced at trial, Morales killed Winchell, then a high school student, by beating her head in with a claw hammer.

Morales' lawyers are expected to probe everything about the state's lethal injection procedures — the nature and amounts of the drugs used, the lighting in the room where people monitor the inmate's death and the background of the people on the execution team.

The state has had a de facto moratorium on executions since February, when officials postponed Morales' execution after they were unable to meet Fogel's conditions, imposed to ensure that the execution would withstand constitutional scrutiny.

Since then, California officials have made some changes in the three-drug cocktail in use at San Quentin and across the country. The first drug, sodium thiopental, is an ultra-fast-acting barbiturate that is supposed to make the condemned inmate lose consciousness. The second drug — pancuronium bromide — is a paralytic agent to prevent the inmate from moving or speaking. The third, potassium chloride, causes cardiac arrest.

A key contention in Morales' lawsuit — and lethal injection challenges in several other states — is that condemned inmates have been insufficiently sedated by the first drug and therefore experience intense pain but are unable to express it because they are paralyzed.

Fogel, in prior rulings in the case, said state records suggest that sodium thiopental may have not worked properly in as many as six of the 11 lethal injection executions conducted in the state, starting with that of William Bonin, the so-called Freeway Killer, in 1996.

A federal judge in Missouri has halted all executions in that state after finding flaws in its lethal injection procedure. An execution has been blocked in South Dakota while a federal judge reviews challenges. Yet another federal judge, in Baltimore, held an extensive hearing on the issue last week.

On the other hand, federal judges in Florida, Oklahoma and Texas have recently rejected challenges to lethal injection, though none of them held hearings as in-depth as the four-day proceeding Fogel has scheduled.

In response to Fogel's concerns, California officials have made some changes in procedure. They have lowered the initial sedative dosage from 5 grams to 1.5 grams, but the state protocol now also calls for the barbiturate to be administered in a constant flow through an intravenous line in one of the condemned person's arms. The remaining two chemicals are to be injected sequentially in the other arm after the initial sedative dose.

State officials believe these changes will ensure that the inmate remains unconscious during the entire execution. But Morales' attorneys — who also include John Grele of San Francisco, David Senior of Los Angeles and Richard Steinken of Chicago — are skeptical. They note that such a procedure has not been tried in California or elsewhere and consequently would need to be closely monitored by medical professionals.

But the state's protocol does not call for a doctor on its 14-member execution team, and medical oaths — "first, do no harm" — bar doctors from participating in executions. Organizations for registered nurses also urge members not to participate. The only role a doctor has had in the modern era of capital punishment in California is in pronouncing the inmate dead.

In February, Fogel told the state it either had to have an anesthesiologist on hand or execute the inmate with an overdose of the sedative.

The state chose the first option, but the two doctors appointed to do the job backed out shortly before the execution was scheduled to occur.