Post by Anja Nieser on Oct 1, 2006 5:28:19 GMT -5
Some suffering permissible during execution, judge says
Far removed from San Quentin's death chamber, the unprecedented legal
challenge to California's lethal injection method got under way Tuesday in
a quiet San Jose courtroom as witnesses began to bore into the details of
how the state puts a condemned killer to death.
U.S. District Judge Jeremy Fogel, who is conducting a four-day hearing
exploring the inner workings of lethal injection, began the proceedings by
emphasizing that the case is not a referendum on the death penalty. Fogel
is considering death row inmate Michael Morales' argument that
California's lethal injection procedures violate the constitutional ban on
cruel and unusual punishment.
"It's inaccurate to say an execution has to be painless,'' Fogel said.
"The question is whether the degree of pain is so severe that it raises
constitutional issues under the Eighth Amendment.'' Lawyers for Morales
began calling witnesses in the case, one of a mounting number of legal
challenges to lethal injection unfolding across the country. Fogel has
effectively put executions on hold in California while he considers the
Morales case, which began in February when the judge postponed the
killer's execution.
Morales is on death row for the 1981 rape and murder of a 17-year-old Lodi
girl, Terri Winchell.
Legal experts say the U.S. Supreme Court, which has never banned an
execution method, may ultimately have to decide whether states can
continue to carry out the death penalty with a lethal dose of drugs.
2 of Morales' key witnesses, including Dr. Kevin Concannon, a specialist
in veterinary medicine, testified that they would not even put an animal
to death using California's method of execution.
"I would not use that protocol on veterinary patients,'' Concannon said.
The veterinary profession has outlawed the use of one of the three drugs
used in California executions, pancurium bromide, which paralyzes the
muscles, because of concerns that it can conceal a painful death.
Opponents of lethal injection say the method does not eliminate the
possibility that an inmate will suffer excruciating pain because the
combination of drugs used in executions may mask any suffering. A total of
37 of 38 states with the death penalty use lethal injection.
In California, prison officials first administer sodium thiopental, a
sedative, to render the inmate unconscious, then the pancurium bromide and
finally potassium chloride, which stops the heart. The state recently
changed its procedure to call for a continuous infusion of the sedative
throughout an execution in hopes of ensuring unconsciousness.
In the course of this week's hearing, Fogel is expected to explore a
number of possible alternatives to the state's current method, including
the option of putting an inmate to death solely with the sodium
thiopental, which is fatal in high dosages but takes longer to cause
death. In fact, Fogel zeroed in on the issue quickly Tuesday as he
questioned Dr. Mark Heath, a New York anesthesiologist who has testified
for death row inmates in dozens of lethal injection cases.
Heath, Morales' chief expert witness, testified that California's lethal
injection procedure is deeply flawed and lags behind changes proposed in
other states. In questioning Heath, Fogel suggested that the crux of
resolving the case is to find a way to ensure an inmate is unconscious
throughout an execution.
"The protocol has to be focused on the anesthetic,'' Fogel remarked.
"Logically, that's what this is about. It almost doesn't matter what drug
you use to execute somebody -- it's a question of whether you properly
anesthetize them.''
Earlier in the day, Morales' lawyers called one witness who questioned how
the state sedates inmates in an execution. William Ebling, a researcher in
pharmaceuticals, testified that the state's use of sedatives does not take
into account differences in how an inmate's body may react, and therefore
there is a risk of "having a painful execution.''
Morales' lawyers also called three attorneys who have represented death
row inmates and witnessed their executions. They recounted concerns about
problems in the executions, but acknowledged under questioning from state
lawyers they did not know if the inmates were unconscious when they were
executed.
John Grele, one of Morales' lawyers, said in opening statements that
evidence of problems in the state's execution method is "disturbing and
frightening.''
"The state has to go back and do it over again,'' Grele said in his
opening statement to Fogel.
Senior Assistant Attorney General Dane Gillette told the judge that there
is no evidence that the state's lethal injection procedure causes an
inmate to suffer.
Heath is expected to resume testifying today.
(source: Mercury News)
Far removed from San Quentin's death chamber, the unprecedented legal
challenge to California's lethal injection method got under way Tuesday in
a quiet San Jose courtroom as witnesses began to bore into the details of
how the state puts a condemned killer to death.
U.S. District Judge Jeremy Fogel, who is conducting a four-day hearing
exploring the inner workings of lethal injection, began the proceedings by
emphasizing that the case is not a referendum on the death penalty. Fogel
is considering death row inmate Michael Morales' argument that
California's lethal injection procedures violate the constitutional ban on
cruel and unusual punishment.
"It's inaccurate to say an execution has to be painless,'' Fogel said.
"The question is whether the degree of pain is so severe that it raises
constitutional issues under the Eighth Amendment.'' Lawyers for Morales
began calling witnesses in the case, one of a mounting number of legal
challenges to lethal injection unfolding across the country. Fogel has
effectively put executions on hold in California while he considers the
Morales case, which began in February when the judge postponed the
killer's execution.
Morales is on death row for the 1981 rape and murder of a 17-year-old Lodi
girl, Terri Winchell.
Legal experts say the U.S. Supreme Court, which has never banned an
execution method, may ultimately have to decide whether states can
continue to carry out the death penalty with a lethal dose of drugs.
2 of Morales' key witnesses, including Dr. Kevin Concannon, a specialist
in veterinary medicine, testified that they would not even put an animal
to death using California's method of execution.
"I would not use that protocol on veterinary patients,'' Concannon said.
The veterinary profession has outlawed the use of one of the three drugs
used in California executions, pancurium bromide, which paralyzes the
muscles, because of concerns that it can conceal a painful death.
Opponents of lethal injection say the method does not eliminate the
possibility that an inmate will suffer excruciating pain because the
combination of drugs used in executions may mask any suffering. A total of
37 of 38 states with the death penalty use lethal injection.
In California, prison officials first administer sodium thiopental, a
sedative, to render the inmate unconscious, then the pancurium bromide and
finally potassium chloride, which stops the heart. The state recently
changed its procedure to call for a continuous infusion of the sedative
throughout an execution in hopes of ensuring unconsciousness.
In the course of this week's hearing, Fogel is expected to explore a
number of possible alternatives to the state's current method, including
the option of putting an inmate to death solely with the sodium
thiopental, which is fatal in high dosages but takes longer to cause
death. In fact, Fogel zeroed in on the issue quickly Tuesday as he
questioned Dr. Mark Heath, a New York anesthesiologist who has testified
for death row inmates in dozens of lethal injection cases.
Heath, Morales' chief expert witness, testified that California's lethal
injection procedure is deeply flawed and lags behind changes proposed in
other states. In questioning Heath, Fogel suggested that the crux of
resolving the case is to find a way to ensure an inmate is unconscious
throughout an execution.
"The protocol has to be focused on the anesthetic,'' Fogel remarked.
"Logically, that's what this is about. It almost doesn't matter what drug
you use to execute somebody -- it's a question of whether you properly
anesthetize them.''
Earlier in the day, Morales' lawyers called one witness who questioned how
the state sedates inmates in an execution. William Ebling, a researcher in
pharmaceuticals, testified that the state's use of sedatives does not take
into account differences in how an inmate's body may react, and therefore
there is a risk of "having a painful execution.''
Morales' lawyers also called three attorneys who have represented death
row inmates and witnessed their executions. They recounted concerns about
problems in the executions, but acknowledged under questioning from state
lawyers they did not know if the inmates were unconscious when they were
executed.
John Grele, one of Morales' lawyers, said in opening statements that
evidence of problems in the state's execution method is "disturbing and
frightening.''
"The state has to go back and do it over again,'' Grele said in his
opening statement to Fogel.
Senior Assistant Attorney General Dane Gillette told the judge that there
is no evidence that the state's lethal injection procedure causes an
inmate to suffer.
Heath is expected to resume testifying today.
(source: Mercury News)