Judge tells state to fix lethal injection system

Judge tells state to fix lethal injection system

By Howard Mintz/MediaNews Group

SAN JOSE

California must fix its "broken" lethal injection procedures before the state can resume executions on the nation's largest death row, a federal judge ruled Friday.

In a 17-page decision, U.S. District Judge Jeremy Fogel stressed that California's execution method "can be fixed." But Fogel concluded that there are such serious problems in how California carries out executions - from poor training of execution team members to sloppy handling of the fatal cocktail of drugs - that the state's procedures violate the constitutional ban on cruel and unusual punishment.

"Given that the state is taking a human life," Fogel wrote, "the pervasive lack of professionalism" in the execution system "is deeply disturbing."

The judge's order came the same day Florida Gov. Jeb Bush declared a moratorium on executions because of a botched lethal injection there earlier this week. Lethal injection, once considered the most humane, antiseptic way of executing condemned murderers, has come under in-creasing attack across the country.

Fogel made it clear that lethal injection can be a constitutional method of execution, but he instructed the state to devise sweeping changes to ensure that death row inmates are not exposed to the

likely possibility of experiencing a cruel death during an execution.

Fogel challenged Gov. Arnold Schwarzenegger to present a plan that would add enough safeguards to allow executions to resume. The case, he said, "presents an important opportunity for executive leadership."

But for now, the judge's decision postpones executions in a state with more than 650 death row inmates and sides with condemned killer Michael Morales, who pressed the legal challenge to California's lethal injection procedures.

California officials have insisted that the state's lethal injection procedures, while needing improvement, are constitutional. Schwarzenegger's office had a limited response to the judge's decision.

"As the ruling provides, the administration will review the lethal injection protocol to make certain the protocol and its implementation are constitutional," Andrea Hoch, the governor's legal affairs secretary, said in a statement. "Gov. Schwar-zenegger will continue to defend the death penalty."

The 47-year-old Morales, on death row for the 1981 rape and murder of 17-year-old Terri Winchell of Lodi, was hours from execution last February when he got a reprieve to pursue his legal challenge to lethal injection.

When the state could not comply with Fogel's conditions for allowing the Morales execution to proceed, including having a doctor monitor the inmate, the judge effectively put executions on hold. Other California inmates have filed eleventh-hour challenges to lethal injection in recent years, but the courts declined to intervene because the cases were brought too late in the process.

With Fogel's ruling, Morales' lawyers said Schwarzenegger should take a cue from Florida's governor by suspending executions until the lethal injection procedures can be overhauled. Bush put a halt to executions after a lethal injection took 34 minutes - twice as long as it should - because prison officials inserted needles clear through the vein of inmate Angel Diaz, requiring a rare, second dose of the lethal chemicals.

Florida, like California and most other death penalty states, administers a fatal three-drug cocktail to death row inmates.

"It's really up to them to fix the problems," John Grele, one of Morales' lawyers, said of the governor's office. "It's not up to us and it's not up to the judge."

Legal experts consider the California case crucial because of the unprecedented amount of evidence presented, raising the possibility Morales' challenge could ultimately force the U.S. Supreme Court to settle whether lethal injection passes constitutional muster.

The Supreme Court has never outlawed a method of execution.

Fogel has accumulated a wealth of evidence from both sides, holding a weeklong hearing in September to hear hours of testimony on the pros and cons of California's system of executing inmates.

Morales' lawyers have argued that California's lethal injection procedure has few safeguards to ensure an inmate is put to death humanely, offering testimony from former San Quentin execution team members who admitted they were never trained to carry out the grim task.

The central argument against the state's procedure is that the combination of three drugs masks the potential for the inmate to experience excruciating pain during an execution. In particular, critics have warned that the first drug may not succeed in rendering an inmate fully unconscious and that the second drug, pancurium bromide, masks evidence that the final and fatal drug, potassium chloride, causes searing pain before death.

At various points in Friday's ruling, Fogel expressed frustration with the state's approach to executions and its lackluster response to the judge's invitation to offer solutions earlier in the case. The judge called the state's recent reluctance to cure problems "self-defeating" if it wants to enforce the state's death penalty.

Dane Gillette, the senior assistant attorney general representing the state, said the judge's decision could be an opportunity to fix problems and avoid more litigation. The state has 30 days to report back to Fogel on whether it plans to defend the current procedure or explore alternatives.

The judge singled out five problems:

• Unreliable screening of execution members before they handle the job.

• Lack of meaningful training and oversight.

• Unreliable record-keeping on what happens in executions.

• Improper mixing of the three drugs.

• An antiquated, cramped death chamber, which was designed as a gas chamber, not for lethal injections.