Marin judge rules lethal injection procedures invalid

Bob Egelko

Chronicle Staff Writer
Thursday, November 1, 2007

California's death penalty system suffered another legal setback Wednesday when a Marin County judge ruled that the state's new procedures for lethal injections, adopted in an effort to end a federal judge's freeze on executions, were invalid because the public never got the chance to comment on them.

Superior Court Judge Lynn O'Malley Taylor said the execution protocol amounted to a statewide regulation enacted without review - public notice, comment and scrutiny from a state office that examines all new regulations.

"The undisputed evidence establishes that (the protocol) is a rule or regulation of general application" and affects prison officials and condemned inmates outside San Quentin State Prison, where the death chamber is located, Taylor said in confirming a tentative ruling she issued Tuesday. The state had argued that the procedures were not statewide regulations because they applied only to San Quentin.

The ruling, in a suit by two condemned prisoners, concerned only the way the state adopted the new rules and did not address allegations that flaws in lethal injection procedures risk botched and torturous executions, the subject of cases in a San Jose federal court and the U.S. Supreme Court.

But Taylor's decision creates a new barrier to the resumption of executions in California, which conducted its last execution in January 2006. An appeal by the state would prolong the case until at least early next year, and complying with the ruling would mean at least several months of public input and regulatory review.

The state will appeal Taylor's decision, said James Tilton, secretary of the Department of Corrections and Rehabilitation. He said the ruling "could further delay implementation of the death penalty in California."

Lawyers for the two Death Row inmates who filed suit said the judge recognized that state law "guarantees the public a right to be informed and to be heard on proposed rules."

The inmates have unsuccessfully appealed their convictions and death sentences and are challenging only the state's planned method of executing them.

One, Michael Morales, 48, of Stockton, is also the plaintiff in a federal court suit in San Jose that brought executions in California to a halt in February 2006, when U.S. District Judge Jeremy Fogel granted him a last-minute stay. Morales was convicted of raping and murdering 17-year-old Terri Winchell in 1981.

The other plaintiff, Mitchell Sims, 47, has been sentenced to death in both California and South Carolina for murdering three employees of Domino's Pizza, his former employer, in two separate incidents in 1986.

Fogel ruled in December that California's lethal injection procedures would violate the constitutional ban on cruel and unusual punishment unless the state overhauled the execution process. He said injections posed an undue risk that a sedative would fail and leave the prisoner conscious, paralyzed and in agony while dying.

The state announced changes in May that included upgrades in staff selection and training, and a new death chamber.

E-mail Bob Egelko at begelko@sfchronicle.com