Judge will visit death chamber before ruling

By Scott Smith
Record Staff Writer
June 02, 2007 6:00 AM

SAN JOSE - A federal judge said Friday he wants to visit California's new death chamber once construction is done later this year before he rules on constitutional challenges a condemned Stockton man made to the state's execution procedure.
U.S. District Judge Jeremy Fogel also said that orders he gave California officials to fix the state's flawed lethal injection method never included directions to start construction on a new death chamber, as the state did under secrecy until it was halted recently.
Fogel said he had no problem saying the new chamber was a "positive step" but made it clear he was not behind the project.

"This court never has and never will order that any chamber be built," Fogel said. "That is legislative and executive function, and it is beyond this court's scope."
Attorneys for the state and for Stockton's Michael Angelo Morales on Friday agreed to hold the next hearings on Oct. 1 and 2. One day will be for Fogel's visit to San Quentin State Prison, and the other day would be for courtroom hearings.

The challenge stems from the death sentence the 47-year-old Morales received for the 1981 rape and murder of Terri Lynn Winchell, 17, also of Stockton. Morales' attorneys 15 months ago won an indefinite delay to his execution by claiming the state's method of lethal injection might cause unconstitutional levels of pain.
The legal battle Fogel is shepherding halted all other California executions, though. Morales is expected to be the first man in line once they resume. More than 650 inmates sit on California's death row, making it the largest of any state.

Attorney John Grele and David Senior, who lead Morales' defense team, appeared at Friday's hearing.
Deputy Attorney General Michael Quinn, who represented the state, said the new lethal injection chamber is 80 percent complete, and construction would be finished within three months once building resumes.

Legislators in July have to pass a bill that will fund any further construction, Quinn said.
"We actually encourage that," Quinn said of Fogel's proposed visit to San Quentin. "We want the court to go out and see."
This would be Fogel's second visit to San Quentin. Fogel last year toured the state's 1930s gas chamber, which has been converted for carrying out lethal injections.
He also held a weeklong hearing exploring the nitty-gritty details of the state's method of execution. He later ruled that California's execution practice was "broken ... but can be fixed."
In response, state officials on May 15 unveiled plans to have a better method of selecting execution team members, training them and keeping records. Plans also included building the new lethal injection chamber.

Correctional officials in secret started to build a new death chamber, but Gov. Arnold Schwarzenegger ordered building halted in April once legislators learned of the controversial project that had gone on without their knowledge and which had grown expensive.
Fogel said he needed to inspect the new chamber; otherwise, any ruling would be academic. He added that neither his visit to the new death chamber nor any questions he asked during the hearings should be interpreted to indicate how he intends to rule.

Contact reporter Scott Smith at (209) 546-8296 or ssmith@recordnet.com.