US appeals court to hear arguments on lethal injection

US appeals court to hear arguments on lethal injection
The Associated PressPublished: December 7, 2006

CINCINNATI: Several opponents of Ohio's lethal injection method of execution contend that the chemicals used in the three-step process inflict such severe pain that death results, in effect, from torture.

They want the procedure declared unconstitutional. The 6th U.S. Circuit Court of Appeals has agreed to hear their arguments on Thursday, less than a week after the court blocked the scheduled Ohio execution of a convicted murderer.

The challenge was filed in December 2004 on behalf of Richard Cooey, 39, who had been sentenced to die for raping and killing two university students in 1986.

Eight Ohio death row inmates have joined Cooey's lawsuit since then, although two have been executed after failing to obtain stays of execution.


"It's safe to say that virtually any death row inmate is attaching this issue to his appeals. If you don't, you lose the opportunity to ever do it again," said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.

"It may not be the sole subject of their appeal, but I think virtually all death row inmates are raising this issue to preserve it. My sense is you'd be negligent not to do it, either in the federal courts or the state courts," Dieter said.

Lawsuits over lethal injection have stopped executions in several states. Most recently, a panel of 6th Circuit judges blocked an execution that was scheduled to take place in Ohio on Tuesday.

That inmate, Jerome Henderson, 47, was convicted of aggravated murder, aggravated burglary and attempted rape in 1985, and his conviction and sentence had been affirmed during several appeals. The U.S. Supreme Court, on the eve of his execution, refused to lift a stay granted by the 6th Circuit panel last Friday.

Ohio uses a three-drug cocktail: sodium pentothal, a barbiturate; pancuronium bromide, a paralyzing agent; and potassium chloride, which stops the heart.

Opponents of lethal injection point to the problem encountered in May prior to the execution of Joseph Clark, 57, when the team at the Southern Ohio Correctional Facility could not find a suitable vein in the longtime intravenous drug user's right arm to insert the requisite second shunt.

The execution was delayed nearly 90 minutes, and at one point Clark turned to the staff and said, "It don't work" as the team tried to start the injection.

Lethal injections are used by the federal government and 37 of the 38 states that have the death penalty. Nebraska uses the electric chair.

Groups opposed to capital punishment say that legal battles over the injection procedure are being fought in at least 14 states.

"The reason why it's not the same for everyone is there's no uniform rule about the appropriate time when to raise the challenge," said Ty Alper, law professor at Berkeley law school and a death penalty clinic. "So a lot of courts are saying, 'Well, you're too late. There may be some merit to your constitutional challenge, but you're raising it too late.'"

The U.S. Supreme Court in June made it easier for death row inmates to challenge lethal injection by opening a separate avenue for challenges outside the facts of the case, Alper said.

"You're not challenging something that happened unfairly at trial," Alper said. "This is a challenge to what the state intends to do with you, but there still may be an issue about whether you raised it in a timely fashion."

http://www.iht.com/articles/ap/2006/12/07/america/NA_GEN_US_Lethal_Injection.php