A year after execution stayed, state still hammering out new plan

Posted on Tue, Feb. 20, 2007
DAVID KRAVETS
Associated Press

SAN FRANCISCO - One year ago, condemned prisoner Michael Morales was set to be executed for the brutal murder and rape of a Lodi teenager. Instead, he won a reprieve that eventually became a California death penalty moratorium with no end in sight.

A federal judge, agreeing with Morales' lawyers, declared the state's lethal injection method unconstitutional, saying the entire lethal injection process - from a poorly lighted setting in the execution chamber to untrained executioners - left open the possibility that prisoners would suffer unnecessary pain.

Still, U.S. District Judge Jeremy Fogel said California's execution protocol was fixable. Yet the legal wrangling since has focused not on a fix, but on how public the state's internal machinations of developing a new protocol should be.

Fogel is scheduled Friday to hear California's plea that the development of a new execution protocol, which might include changes to the three-drug death cocktail, should be formulated in secret.

The state claims experts, such as doctors, might not be willing to offer their services if their involvement becomes public.

Such secrecy is not without precedent, as the Florida Gov.'s Commission on Administration of Lethal Injection is hearing testimony from medical professionals whose identities remain anonymous out of fear of being labeled executioners. Then-Gov. Jeb Bush suspended executions late last year and commenced hearings after witnesses said a condemned inmate, who needed a second dose of lethal chemicals, appeared to be in pain when he was killed.

In all, challenges to lethal injection - whether it violates the Constitution's ban on cruel and unusual punishment - has placed executions on hold in 11 of the 37 states that use the procedure. The U.S. Supreme Court has upheld executions - by lethal injection, hanging, firing squad, electric chair and gas chamber, but has left unsettled whether the pain in lethal injections is unconstitutionally excessive.

The mother of Morales' victim wants to see justice meted out. Morales beat, raped and stabbed her 17-year-old daughter, Terri Winchell, in 1981. Morales, meanwhile, has been fighting to stay alive ever since, using a California and federal court system that has created the nation's most clogged death row where few inmates are executed.

"I'd just like to see it done," mother Barbara Christian said. "He needs to pay for his crime."

California is home to the nation's largest death row, with about 650 condemned inmates. Thirteen prisoners have been executed since California reinstated the death penalty in 1977.

Fogel ruled that, among other things, executioners have been poorly trained, have worked in dim, cramped quarters and have failed to properly mix the lethal drugs used to put prisoners to death.

Richard Dieter, executive director of the Death Penalty Information Center, a clearinghouse of capital punishment information based in Washington, D.C., said the less secrecy the better when adopting a new lethal injection method.

"Let's develop this process in the open so flaws are quickly identified by experts," Dieter said. "It's gonna face challenges. You might as well have it all out in the open."

Morales' legal team and five news organizations are set to ask Fogel on Friday to block California officials from coming up with a new procedure for executing inmates in secret.

The Los Angeles Times, San Francisco Chronicle, Sacramento Bee, Fresno Bee and Modesto Bee argue that such secrecy would be illegal. They said Proposition 59, approved by 83 percent of voters in 2004, allows "the public to see and understand the deliberative process through which decisions are made."

The case is Morales v. Tilton, 06-219.