Friday, 2 February 2007

Secret execution talks challenged

Secret execution talks challenged

Lawyers for a death row inmate and some news outlets want California officials' discussions on revising lethal injection to be conducted in the open.
By Henry Weinstein, Times Staff Writer
February 2, 2007

Attorneys for death row inmate Michael Morales have asked a federal judge to bar state officials from working in secret to revise California's protocol for executions by lethal injection.

The request came in briefs filed late Wednesday in response to a motion from a lawyer for Gov. Arnold Schwarzenegger that had sought a protective order that would shield the state's deliberations from public view. Lawyers for the media also asked that the process be open.

U.S. District Judge Jeremy Fogel in San Jose issued a scathing decision in December, holding that California's current lethal injection procedures violate the constitutional prohibition against cruel and unusual punishment. Morales, like other inmates around the country, had alleged that the state's three-drug cocktail inflicts extreme pain, masked by a paralyzing agent that is part of the protocol. Fogel said the state's system "is broken, but … can be fixed."

In response, the state agreed to issue a report by May 15 outlining the changes it proposes to meet Fogel's concerns.

Officials also asked, however, that they be allowed to work in secret.

In a court filing, Deputy Atty. Gen. Steven M. Gevercer said "experts, consultants, professionals and other public officials" working on a new system "should feel comfortable discussing alternatives, options and possibilities without fear that they will be subpoenaed or deposed simply due to their participation in pre-decisional policymaking."

Attorney John Grele of San Francisco, one of the lead lawyers for Morales, who has been on death row for more than 20 years for the brutal slaying of Lodi teenager Terri Winchell, responded that secrecy was unnecessary.

California officials have offered no support for the "astounding assertion" that absent the protections they seek, "experts will not be willing to participate in the process," Grele wrote in his brief. "There is every reason to think that experts will be willing to participate in the revision even if their identities and deliberations are public."

He contrasted the state's request with then-Gov. Jeb Bush's response to the botched mid-December execution of Angel Diaz in Florida. Bush called a halt to executions and created a Commission on Lethal Injections to publicly review the entire process in that state.

A post-execution review by Florida officials showed that Diaz's execution was bungled because of a malfunction in the intravenous lines that fed him the drugs. The problem left Diaz with 12-inch chemical burns on each arm. Some eyewitnesses said he writhed in pain for 34 minutes before he finally died.

The commission created by Bush "is operating in public, and has been able to retain medical and corrections experts to deliberate over potential improvements in the lethal injection protocol," Grele said. All of the commission members, including an anesthesiologist and a county emergency medical services director, have been publicly identified by state officials and in Florida media. In contrast, Grele stated, California's proposed revision process is "shrouded in secrecy."

Florida's three-drug lethal injection cocktail is similar to California's. The first drug, sodium thiopental, is a fast-acting barbiturate that is supposed to render the condemned inmate unconscious before the second two drugs — pancuronium bromide, which paralyzes the body, and potassium chloride, which causes cardiac arrest — are administered.

The thrust of Morales' challenge is that the state does not properly administer enough of the first drug to ensure that an inmate does not feel excessive pain when the potassium chloride is administered and that the pain is masked by the second drug, which makes it impossible for the inmate to cry out.

Fogel's Dec. 15 decision cited several "critical deficiencies" in the state's lethal injection system, including poorly trained staff; unreliable records on drugs used in the process; improper mixing, preparation and administration of drugs; and overcrowded conditions in the death chamber at San Quentin. Granting a protective order at this time would "only insulate incompetence," Grele said.

The media companies also opposing the protective order include Pacific News Service, the Los Angeles Times, the Hearst Corp. and McClatchy Newspapers. Pacific News Service has a separate case pending in front of Fogel alleging that pancuronium bromide conceals whether the inmate is experiencing pain and as a consequence "infringes the 1st Amendment right of the public and the press to attend and to witness executions meaningfully."

Pacific News' lawyers, led by Ajay S. Krishnan of San Francisco's Keker & Van Nest, say their case "will turn on balancing the government's legitimate interest in administering pancuronium bromide against PNS' 1st Amendment interest in meaningfully witnessing executions. To perform that balancing test, the court must know the [state's] actual reasons for administering pancuronium bromide." If the judge permits the state to keep its deliberations secret, Pacific News will be unable to obtain vital information on the central point of its lawsuit, Krishnan contends.

The brief for the newspapers emphasizes that in 2004, "California voters, by an 83% approval margin, enacted … constitutional right of access to information … which, in the words of its proponents, 'will allow the public to see and understand the deliberative process through which decisions are made.' " If the state obtains the protective order, it will undermine that California law, said San Francisco attorney Karl Olson, who represents the newspapers.

On Thursday, Schwarzenegger's legal affairs secretary, Andrea Lynn Hoch, issued a statement reiterating the need for secrecy.

"In order to protect the integrity of the decision-making process and provide an environment where candid discussions can take place and all options can be explored, we are asking the court to protect the deliberative process," the written statement said.

"This process is critical to producing a revised lethal injection protocol and effective procedures that address the identified deficiencies in the implementation of the lethal injection protocol…. If the deliberative process is harmed by the constant threat of subpoena and discovery, then the decision-making process is impaired, which impacts the policy decisions."


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