Revised lethal injection plan assailed

Lawyers for death row inmate Michael Morales say a revised protocol for executing convicts is 'even more ill-conceived' than previous versions.

By Henry Weinstein, Times Staff Writer
July 4, 2007

Attorneys for condemned inmate Michael Morales told a judge overseeing a legal challenge to California executions that the state's new lethal injection procedures are "even more ill-conceived and deficient than the older versions."

The comments came in an amended complaint filed Tuesday in U.S. District Court in San Jose in response to proposed revisions to the state's procedures for executing death row inmates.

In December, Judge Jeremy Fogel ruled that California's lethal injection methods violate the 8th Amendment's prohibition against cruel and unusual punishment.

California, like three dozen other states that use lethal injection, employs a three-drug cocktail, which has been blamed for excruciatingly painful deaths of inmates nationwide.

The first drug, sodium thiopental, is a fast-acting barbiturate that is supposed to render the inmate unconscious before the other two drugs — pancuronium bromide, which paralyzes the body, and potassium chloride, which causes cardiac arrest — are administered.

In practice, inmates may not be fully anesthetized before the heart-stopping drug kicks in, but cannot express their pain because of the paralytic, critics say.

Fogel found that evidence of problems with the state's processes was "more than adequate to establish a constitutional violation."

In response to the criticism, state officials submitted a new protocol May 15. The officials indicated that they would stick by the three-drug formula but adjust the doses and train prison staff to ensure that inmates are thoroughly unconscious before the other two drugs are administered.

Lawyers for Gov. Arnold Schwarzenegger and the state attorney general's office said the revised procedure "will result in the dignified end of life" for condemned inmates.

But Morales' defense lawyers countered that California's new procedure "utterly fails to even examine the many 'substantial questions' … recognized by the district court regarding the significant risk" that their client "will suffer excruciating pain during the execution."

The protocol, known as Procedure No. 770, "lacks medically necessary safeguards," defense lawyers Ginger Anders, John Grele, David Senior and Richard Steinken asserted in their brief.

The lawyers said a state proposal to lower the dosage of sodium thiopental increases the possibility that the inmate will not be fully anesthetized.

They also said there was no provision to ensure full anesthetization, "as would be required in any medical or veterinary procedure."

State officials "deliberately increased the risk of excessive suffering in order to ensure that executions are carried out as swiftly as possible," the lawyers said.

In his December ruling, Fogel said that the way the state conducted executions was characterized by "a pervasive lack of professionalism."

Among other things, he was critical of the lack of training, supervision and oversight of the execution team. The state said in May that it had addressed those problems.

But the latest defense brief says the new protocol does not provide any training for members of the execution team, nor does it set standards for the level of experience or other qualifications for the job.

Deputy Atty. Gen. Michael J. Quinn, the state's lead lawyer, said the defense team's points have not changed the state's view of the case.

"We are still confident that the protocol we submitted in May complies with the 8th Amendment and addresses all the concerns that the judge put forward in December," Quinn said.

Judge Fogel has scheduled a hearing on the new protocol in October.

Morales has been on death row for nearly a quarter-century for the 1981 murder of Lodi teenager Terri Winchell.

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henry.weinstein@latimes.com