New death row ruling falls short of killing debate

Appeal likely as state plans for executions.

Published Wednesday, June 6, 2007

ST. LOUIS (AP) - For nearly two years, Missouri’s execution chamber at Bonne Terre has sat quiet. Now that a federal appeals court has lifted a moratorium on executions in the state, that might soon change.

What was less certain yesterday was how the decision will affect the 36 other states that use lethal injection. Those who follow the death penalty offered mixed assessments on the effect of the Missouri ruling.

Missouri officials appear eager to restart the execution process in the wake of Monday’s ruling by a three-judge panel of the Eighth U.S. Circuit Court of Appeals that the state’s three-drug procedure is not cruel and unusual punishment.

Gov. Matt Blunt said he was directing the Department of Corrections "to prepare execution procedures in compliance with the ruling." Meanwhile, Attorney General Jay Nixon, responsible for asking the state Supreme Court to set execution dates, was moving quickly.

"This office will be moving forward to facilitate the process in a timely manner now that this legal roadblock has been cleared and will be determining which inmates’ cases have progressed to the point where an execution date can be requested," said John Fougere, a spokesman for Nixon.

High on that list will likely be Michael Taylor, who kidnapped a teenage girl from a Kansas City school bus stop in 1989 and killed her. His case prompted U.S. District Judge Fernando Gaitan Jr. last year to place a moratorium on Missouri executions, citing concerns the procedure could cause undue suffering for the inmate.

The Eighth Circuit reversed Gaitan’s ruling. Judge David Hansen wrote there was not "one scintilla of evidence" of suffering among any of Missouri’s six most recently executed inmates.

Taylor’s attorney, Ginger Anders, said she will ask the full Eighth Circuit to review the case and go to the U.S. Supreme Court if necessary.

The appeals panel’s ruling focused solely on the protocol, not the performance of duties in executing inmates, Anders noted.

Injection has been the preferred method since the death penalty was renewed in the United States in the 1970s and has been used in more than 900 executions nationwide.

Of the 38 states that have the death penalty, only Nebraska uses another method - electrocution.

The lethal injection debate centers on how three drugs are administered in succession. If the initial anesthetic does not take hold, a third drug that stops a condemned prisoner’s heart can cause excruciating pain, it has been argued. But the inmate would not be able to communicate the pain because of a second drug that paralyzes him.

Missouri was one of nine states that had placed executions on hold while courts weighed the merits of the three-drug protocol.

In California, a federal judge ruled in December that the state’s lethal injection procedures were cruel and unusual punishment. A moratorium began there in February 2006, with more than 650 people awaiting execution.

In Ohio, death penalty opponents last month sought a halt to executions after prison staff stuck Christopher Newton at least 10 times with needles to find a suitable vein on the condemned man’s arm.

In Florida, Gov. Jeb Bush halted executions in December after the lethal injection of Angel Nieves Diaz took 34 minutes and required a rare second dose of chemicals.

Sara Tofte of Human Rights Watch called Monday’s ruling "incredibly disappointing."
"It certainly will send a message to some states that they can go ahead and execute inmates," Tofte said.

But Richard Dieter, executive director of the Death Penalty Information Center in Washington, doubted the ruling would open the floodgates in other states. "In each of these states, there are special things that make each one a little different," Dieter said. "I think the issue is going to go up to the Supreme Court."

The last execution in Missouri occurred on Oct. 26, 2005, when convicted killer Marlin Gray was put to death. He was the 67th man executed since Missouri renewed the death penalty in 1989.

Both Taylor and his accomplice in the killing of 15-year-old Ann Harrison, Roderick Nunley, have been on death row 16 years. Five inmates have been awaiting execution for more than 20 years. The longest-serving of the 46 prisoners, all men, is Elroy Preston, on death row since 1982 for killing a St. Louis couple.

Beth Riggert, a spokeswoman for the state Supreme Court, said it was impossible to predict when the next execution could occur.

Corrections department spokes-man Brian Hauswirth said the execution procedure has been revised. The biggest change is the removal of Jefferson City surgeon Alan Doerhoff, the dyslexic doctor who previously oversaw administration of the lethal chemicals.

The state has been unable to find another doctor willing to participate. Hauswirth would say only that the corrections department "will have appropriate medical personnel."