Order to recruit doctors for executions put on hold
By Brian Witte
February 27, 2007
ANNAPOLIS -- Maryland officials can wait until pending legislation on capital punishment is resolved before complying with a federal court order requiring them to explore recruiting doctors to participate in executions, a federal judge has decided.
U.S. District Judge Benson Legg's court order underscores the impact of the death penalty debate in Annapolis. He issued the order in response to requests from both sides of the federal civil case involving death-row inmate Vernon Evans Jr.
"Given the recent and rapid changes in Maryland death-penalty law and state administration and in light of the bills introduced during the legislative session, the defendants request that their compliance with the court's order be suspended," lawyers for the attorney general's office wrote.
In a ruling in December, the state's highest court invalidated Maryland execution protocols and effectively halted the death penalty in the state. Capital punishment cannot resume in Maryland until the protocols are properly adopted under the Maryland Administrative Procedure Act or exempted from the act by the General Assembly.
A bill in Annapolis would exempt the protocols from the act's requirements. If approved, it would go into effect June 1.
Another measure would repeal the death penalty in Maryland, replacing it with a sentence of life in prison without parole.
Judge Legg's order, which was issued Thursday, came a day after Gov. Martin O'Malley, a Democrat, testified in Annapolis last week in favor of repealing the death penalty. It requires lawyers for the state and Evans to file a status report every 90 days.
Lawyers for Evans contend that personnel who carry out lethal injections are not qualified to know whether an inmate is properly anesthetized before being put to death.
They argue that their client's veins are so damaged from intravenous drug use that current execution protocol would subject him to "an unnecessary risk of unconstitutional pain and suffering."
Evans' lawyers have asked the federal judge to require the state to add a general surgeon and either an anesthesiologist or a certified nurse anesthetist to the lethal-injection team.
Attorneys for the state have argued that such specialists are not needed because an execution is not a medical procedure and execution team members are qualified to carry out the process.
The state also has argued that finding such specialists would be difficult. The American Medical Association, the American Society of Anesthesiologists and the American Nurses Association strongly discourage members from taking part in lethal injections.
But Evans' lawyers have argued that there are medical specialists willing to take part.
During a federal court hearing in November in Baltimore, Judge Legg emphasized that he had not made a decision. However, he wrote in December that to decide the case, he must balance the potential harm to the plaintiff if the relief is withheld against the burden to the defendant if the relief is granted. To do that, he wrote, the court has to assess how difficult it would be for the state to recruit the medical specialists whom Evans' attorneys want on the execution team.
The judge had asked the state to "explore the feasibility of recruiting the following specialists: a general surgeon and either a (certified registered nurse anesthetist) or an anesthesiologist."
Initially, the judge had set a deadline for tomorrow for the state to submit a written plan describing the parameters of a proposed search.
Laura Mullally, an assistant attorney general who is working on the case, declined to comment yesterday.
Evans was sentenced to die for the murders of Scott Piechowicz and his sister-in-law, Susan Kennedy, in 1983. It was his appeal to the Maryland Court of Appeals that prompted the ruling in December invalidating the state's execution protocol.