San Quentin's execution team is called incompetent

San Quentin's execution team is called incompetent

A brief filed on behalf of killer Michael Morales finds broad problems with death penalty cases.

By Henry Weinstein, Times Staff Writer

November 29, 2006


California's procedures for executing prisoners by lethal injection fall short of standards set by the veterinary profession for animal euthanasia and were formulated with less care than methods in China, the world leader in capital punishment, according to a brief filed Tuesday in San Jose federal court by attorneys for a death row inmate.

In addition, the brief asserts that the execution team at San Quentin State Prison is "unlicensed, untrained, unprofessional and incompetent" to carry out its duties.

The brief was lodged as U.S. District Judge Jeremy Fogel prepares to rule on perhaps the most fiercely fought of a number of legal challenges in several states to lethal injection, the dominant method of execution in the nation.

Fogel is expected to rule by the end of the year in the case of Michael Morales, who argues that California's injection methods create an unnecessary risk of excessive pain and as a consequence violate the 8th Amendment prohibition against cruel and unusual punishment.

The California Department of Corrections and Rehabilitation "conducts its executions in an outdated, cramped gas chamber with an undersized and dark anteroom," from which prison staff are supposed to assure proper administration of a three-drug protocol, the brief says.

The brief also says the state uses chemicals "mixed by untrained and unsupervised prison staff, while ensuring that there is no meaningful oversight or review."

Earlier this month, the California attorney general's office issued a ringing defense of the state's procedures, maintaining in its brief that "there is no evidence that any prior execution resulted in the unnecessary and wanton infliction of pain."

But the 274-page brief filed by Morales' attorneys finds fault with virtually every aspect of California's administration of capital punishment, frequently citing statements by state personnel during the proceedings.

For example, the execution team leader, identified only as Witness No. 5, said that for the last eight executions, he did not require team members to practice mixing sodium thiopental, which is supposed to anesthetize the inmate before the two other drugs — pancuronium bromide, which paralyzes the inmate, and potassium chloride, which causes cardiac arrest — are administered.

One of the key arguments in the Morales case, and in several other lethal injection challenges around the country, is that the anesthetic has not been properly administered, with the result that the inmate experiences excruciating pain but cannot express it because he is paralyzed.

Witness No. 4, a licensed vocational nurse, said in a deposition that she was not trained to mix thiopental. The first time she prepared it was the night of an execution, she said.

The Department of Corrections "has failed to comprehend both the importance of properly preparing [the drug] and the difficulty of doing so," according to the brief filed by defense lawyers David A. Senior, Kathleen T. Saenz and Benjamin D. Weston of Century City. Attorneys Ginger Anders of Washington, John Grele of San Francisco and Richard Steinken of Chicago helped prepare the brief.

In response to a question from the judge, the defense brief indicated that it might be less risky to use a single drug. Still, Morales' lawyers cautioned that there would still be risks. Significant problems with the execution chamber and drug delivery apparatus, including cramped quarters, poor lighting and bad sight lines, still exist.

Fogel asked the lawyers how the procedure could be improved. But Morales' lawyers said that they were ethically constrained in their answers, saying they could not "be put in the position of designing for the state its execution procedure."

In response to another question from Fogel, defense lawyers said many of the dangers in monitoring the inmate, inserting the IVs and injecting the drugs "flow from the fact" that the state continues to execute prisoners in San Quentin's old gas chamber, instead of in a facility designed for lethal injection.

"It is common sense that a facility should be designed to accommodate the specific elements of the procedure that will be performed in that facility. The veterinary profession has recognized this and advocates using dedicated rooms for euthanasia," the defense brief stated.

Defense lawyers noted that a witness for the state, Dr. Robert Singler, observed that "the cramped quarters and positioning of the gurney rendered placing the IVs more difficult than in a clinical setting." Execution staffers have repeatedly experienced difficulty inserting IVs to deliver the lethal drugs, the brief pointed out. It noted that several other states have built a facilities for lethal injections.

Defense lawyers said there may be a better execution anesthetic than thiopental. But as long as the protocol includes pancuronium bromide and potassium chloride, "it is imperative" that the state provide for a clinical bedside evaluation of anesthetic levels by a trained professional, the brief said.

The defense said it "should not be that difficult" for the state to retain such a doctor, although a brief filed by the California attorney general's office earlier this month asserted that such a requirement would effectively shut down capital punishment in California because leading physicians' organizations have urged their members not to participate in executions.

Morales' lawyers criticized state officials for failing to adequately research either their original lethal injection protocol or a modified procedure adopted in the face of his legal challenge. In contrast, they said, Chinese government officials conducted detailed experiments on animals before executing humans by lethal injection

Morales' lawyers argued that the state needed to bring its execution procedures into the open.

"For the past 14 years," they said, the Corrections Department has undertaken the recruiting, screening and training of execution team members "in total secrecy. That secrecy has permitted the execution system at San Quentin to operate in an unbelievably dysfunctional manner."

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henry.weinstein@latimes.com