Post by Anja Nieser on Sept 6, 2006 18:20:50 GMT -5
Prosecutor wary of execution law change
The man who prosecuted condemned killer Elijah Page said Tuesday that the
South Dakota Legislature could give death-row inmates material for legal
appeals by rewriting the state law on lethal injections.
Lawrence County State's Attorney John Fitzgerald, who prosecuted Page,
Briley Piper and Darrell Hoadley for the March 2000 murder of Chester
Allan Poage of Spearfish, said state lawmakers should be especially
careful if they rewrite the statute defining the method of lethal
injection. About four hours before Page's scheduled 10 p.m. execution Aug.
29, Gov. Mike Rounds issued a reprieve until at least July 1. Rounds said
the statute on lethal injections and the procedure planned for Page were
in conflict.
State law calls for a 2-drug method of execution, with a fast-acting
barbiturate and a paralytic drug, but the state Department of Corrections
procedure calls for a 3rd drug, potassium chloride, to be used. Rounds
wants the 2007 state Legislature to amend the existing law to allow the
use of 3 drugs, clearing the way for Page's execution sometime after July
1.
But Fitzgerald said it's likely that the re-written law would be
challenged in court, a process that would further delay the execution that
Page says he wants.
"You've got to be careful when you change the law," Fitzgerald said. "The
definition of ex post facto law is changing the punishment after the
crime. Some could argue that if you change from two drugs to three, in
essence, you change the punishment.
"I'm not saying that it is ex post facto law. I'm saying these people on
death row will probably raise it as an issue, or they could."
South Dakota Attorney General Larry Long said he expects an appeal if the
Legislature rewrites the lethal-injection provisions in the law. The
doctrine of ex post facto applies to laws that retroactively make certain
actions illegal or increase the penalties for existing crimes, Long said.
"One of the guys on death row will make an argument that since the
protocol in statute changes from two to three drugs, the law prohibits
them from being executed under the new procedure," he said. "I think most
likely it will be disposed of on the basis of the penalty is death, and
the penalty doesn't change."
Page is 1 of 4 people on death row in South Dakota. He and Piper were
sentenced to death by Circuit Judge Warren Johnson after pleading guilty
to murdering Poage. Hoadley was found guilty at trial and was sentenced to
life in prison by a jury.
Charles Rhines and Donald Moeller are the other death-row inmates. Rhines
was convicted for the 1992 murder of Donnivan Schaeffer in Rapid City.
Moeller is on death row for the 1990 rape and murder of 9-year-old Becky
O'Connell of Sioux Falls.
During a hearing before Johnson last month in Deadwood, Page clarified
that he had previously declined the opportunity, offered by his lawyer, to
challenge the planned use of three drugs in his execution.
Moeller has raised the lethal-injection issue in federal court in Sioux
Falls. Lawyer Mark Marshall of Sioux Falls, who represents Moeller in that
action, has asked U.S. District Judge Lawrence Piersol to determine
whether the state's execution statute is constitutional. Marshall said the
law is clearly in conflict with the policy by the state Department of
Corrections.
"We have a statute that clearly calls for only 2 drugs and a state policy,
or a DOC policy, that calls for three drugs," Marshall said.
Despite that apparent conflict, Fitzgerald believes that the state could
have executed Page using either 2 or 3 drugs, particularly because Page
himself waived his legal argument against the policy last month. But he
also believes that the use of the 3rd drug, potassium chloride, could open
the state to arguments that use of the drug causes pain before death.
Inmates in other states already are making that legal argument.
Long expects that issue to land in South Dakota, now that the state is
preparing for its 1st execution in almost 60 years, apparently with the
3-drug procedure. He believes that the current state law would allow the
use of 3 drugs, even though it says 2.
"The statute says you have to use 2. It doesn't say you can't use 3," Long
said. "9 states with statutes perfectly identical to ours have been
executing people (using 3 drugs)."
Marshall argues that three drugs are not permissible under the law,
pointing to a separate statute on the meaning of "shall" that he believes
clarifies legislative intent. In part, that statute says: "The punishment
of death shall be inflicted by the intravenous administration of a lethal
quantity of an ultra-short-acting barbiturate in combination with a
chemical paralytic agent."
When added to the other statute, the intent is clearly that 2 drugs be
used, Marshall said.
"We have another statute that says when 'shall' is used in a statute, it
is a mandatory directive that allows no discretion in carrying out what is
to be done," Marshall said.
Piersol could rule any day on Moeller's motion, Marshall said.
Regardless of that ruling, Fitzgerald said that if the Legislature revises
the lethal- injection language, it should remember the ex post facto
doctrine.
"If they've got to go ahead and change the law, I'd say the Legislature
should say you can have 2 drugs or 3 drugs, by choice of the inmate,"
Fitzgerald said. "But if he refuses, he should be executed in accordance
with the drugs in effect at the time of the murder."
Long said that even if the Legislature revises the law specifically to say
3 drugs will be used, the most that current death-row inmates are likely
to get on appeal is the option to die according to the 2-drug policy that
was in law at the time of their crimes.
"The best results that Moeller and the other death-row inmates could get
would be a choice," Long said.
Long said he expects DOC officials and members of the governor's staff to
write the "remedial legislation" to revise the lethal-injection language
in law.
"We help with some of that stuff," Long said. "I expect we'll be involved
in this one."
(source: The Rapid City Journal)
The man who prosecuted condemned killer Elijah Page said Tuesday that the
South Dakota Legislature could give death-row inmates material for legal
appeals by rewriting the state law on lethal injections.
Lawrence County State's Attorney John Fitzgerald, who prosecuted Page,
Briley Piper and Darrell Hoadley for the March 2000 murder of Chester
Allan Poage of Spearfish, said state lawmakers should be especially
careful if they rewrite the statute defining the method of lethal
injection. About four hours before Page's scheduled 10 p.m. execution Aug.
29, Gov. Mike Rounds issued a reprieve until at least July 1. Rounds said
the statute on lethal injections and the procedure planned for Page were
in conflict.
State law calls for a 2-drug method of execution, with a fast-acting
barbiturate and a paralytic drug, but the state Department of Corrections
procedure calls for a 3rd drug, potassium chloride, to be used. Rounds
wants the 2007 state Legislature to amend the existing law to allow the
use of 3 drugs, clearing the way for Page's execution sometime after July
1.
But Fitzgerald said it's likely that the re-written law would be
challenged in court, a process that would further delay the execution that
Page says he wants.
"You've got to be careful when you change the law," Fitzgerald said. "The
definition of ex post facto law is changing the punishment after the
crime. Some could argue that if you change from two drugs to three, in
essence, you change the punishment.
"I'm not saying that it is ex post facto law. I'm saying these people on
death row will probably raise it as an issue, or they could."
South Dakota Attorney General Larry Long said he expects an appeal if the
Legislature rewrites the lethal-injection provisions in the law. The
doctrine of ex post facto applies to laws that retroactively make certain
actions illegal or increase the penalties for existing crimes, Long said.
"One of the guys on death row will make an argument that since the
protocol in statute changes from two to three drugs, the law prohibits
them from being executed under the new procedure," he said. "I think most
likely it will be disposed of on the basis of the penalty is death, and
the penalty doesn't change."
Page is 1 of 4 people on death row in South Dakota. He and Piper were
sentenced to death by Circuit Judge Warren Johnson after pleading guilty
to murdering Poage. Hoadley was found guilty at trial and was sentenced to
life in prison by a jury.
Charles Rhines and Donald Moeller are the other death-row inmates. Rhines
was convicted for the 1992 murder of Donnivan Schaeffer in Rapid City.
Moeller is on death row for the 1990 rape and murder of 9-year-old Becky
O'Connell of Sioux Falls.
During a hearing before Johnson last month in Deadwood, Page clarified
that he had previously declined the opportunity, offered by his lawyer, to
challenge the planned use of three drugs in his execution.
Moeller has raised the lethal-injection issue in federal court in Sioux
Falls. Lawyer Mark Marshall of Sioux Falls, who represents Moeller in that
action, has asked U.S. District Judge Lawrence Piersol to determine
whether the state's execution statute is constitutional. Marshall said the
law is clearly in conflict with the policy by the state Department of
Corrections.
"We have a statute that clearly calls for only 2 drugs and a state policy,
or a DOC policy, that calls for three drugs," Marshall said.
Despite that apparent conflict, Fitzgerald believes that the state could
have executed Page using either 2 or 3 drugs, particularly because Page
himself waived his legal argument against the policy last month. But he
also believes that the use of the 3rd drug, potassium chloride, could open
the state to arguments that use of the drug causes pain before death.
Inmates in other states already are making that legal argument.
Long expects that issue to land in South Dakota, now that the state is
preparing for its 1st execution in almost 60 years, apparently with the
3-drug procedure. He believes that the current state law would allow the
use of 3 drugs, even though it says 2.
"The statute says you have to use 2. It doesn't say you can't use 3," Long
said. "9 states with statutes perfectly identical to ours have been
executing people (using 3 drugs)."
Marshall argues that three drugs are not permissible under the law,
pointing to a separate statute on the meaning of "shall" that he believes
clarifies legislative intent. In part, that statute says: "The punishment
of death shall be inflicted by the intravenous administration of a lethal
quantity of an ultra-short-acting barbiturate in combination with a
chemical paralytic agent."
When added to the other statute, the intent is clearly that 2 drugs be
used, Marshall said.
"We have another statute that says when 'shall' is used in a statute, it
is a mandatory directive that allows no discretion in carrying out what is
to be done," Marshall said.
Piersol could rule any day on Moeller's motion, Marshall said.
Regardless of that ruling, Fitzgerald said that if the Legislature revises
the lethal- injection language, it should remember the ex post facto
doctrine.
"If they've got to go ahead and change the law, I'd say the Legislature
should say you can have 2 drugs or 3 drugs, by choice of the inmate,"
Fitzgerald said. "But if he refuses, he should be executed in accordance
with the drugs in effect at the time of the murder."
Long said that even if the Legislature revises the law specifically to say
3 drugs will be used, the most that current death-row inmates are likely
to get on appeal is the option to die according to the 2-drug policy that
was in law at the time of their crimes.
"The best results that Moeller and the other death-row inmates could get
would be a choice," Long said.
Long said he expects DOC officials and members of the governor's staff to
write the "remedial legislation" to revise the lethal-injection language
in law.
"We help with some of that stuff," Long said. "I expect we'll be involved
in this one."
(source: The Rapid City Journal)