Thursday, 1 November 2007

Judge nixes new Calif. execution method

Judge Tosses Out Calif.'s New Execution Method; Adds to Growing Uncertainty Over Death Penalty

AP News

Oct 31, 2007 23:39 EDT

California's stalled death penalty plunged deeper into disarray Wednesday when a judge tossed out the state's new lethal injection method.

The judge's ruling added to the growing uncertainty over the status of capital punishment in the state.

Marin County Judge Lynn O'Malley Taylor invalidated the state's new procedure because state prison officials failed to treat the new execution method as a new state regulation, which mandates public comment among other requirements.

Taylor's ruling came a day after the U.S. Supreme Court signaled it would continue to halt executions nationwide until it decides a challenge to Kentucky's lethal injection procedure.

California prison officials in May overhauled their process for injecting condemned inmates with a deadly three-drug combination. That was in response to a federal judge's ruling that California's execution procedure was so badly designed and carried out that it was likely to cause unconstitutional pain and suffering.

Taylor's ruling didn't touch on any of the constitutional issues before the U.S. Supreme Court and federal court system.

Instead she said prison officials violated an arcane administrative law that required them to treat the revised lethal injection procedure as a new regulation that required public comment and approval from the Office of Administrative Law.

"The means by which we execute people is a very substantial public issue," said Brad Phillips, an attorney representing the two condemned inmates who sued the state in Marin County to stop their executions. "The lethal injection protocol in California is of great statewide prominence."

Deputy Attorney General Michael Quinn argued unsuccessfully that the new execution method, which includes the remodeling of the death chamber to make it more spacious and better lit, is limited only to San Quentin Prison in Marin County and therefore not a statewide regulation.

"It applies to a small range of prisoners for a specified time at a single facility," Quinn argued Wednesday morning before the judge issued her final ruling. Quinn said he's unsure what the state would do next.

All state executions take place at San Quentin. There are 667 inmates currently on death row, including 15 women held at a prison in Madera County. No executions have been carried out since January 2006.

The next month, prison officials called off the execution of Michael Morales hours before he was to die for the rape and killing of 17-year-old Terri Winchell in a Lodi vineyard 26 years ago.

Prison officials said they could not comply with U.S. District Court Judge Jeremy Fogel's order that licensed medical professionals assist with the execution.

Fogel said in December he would declare the state's lethal injection process unconstitutional unless prison officials improved the procedure with better trained staff and improved conditions in the death chamber.

Fogel was scheduled to tour the prison's remodeled death chamber Nov. 19.

There's also a growing sense that the U.S. Supreme Court has instituted an unspoken moratorium on lethal injection executions since it agreed in September to consider a challenge to Kentucky's capital punishment procedure.

On Tuesday, the high court halted an execution in Mississippi, less than an hour before a convicted killer was scheduled to be put to death by lethal injection.

It's the third such high court reprieve since Sept. 25 when the court said it would hear a lethal injection challenge from two Kentucky death row inmates. State and lower federal courts have halted all other scheduled executions since then.

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