State judge set to toss out California's new execution method

By Paul Elias
ASSOCIATED PRESS

2:21 a.m. October 31, 2007

SAN FRANCISCO – A judge is set to toss out California's new lethal injection method for condemned inmates, a move that would throw even more uncertainty into the state's stalled capital punishment law.
Marin County Superior Court Judge Lynn O'Malley Taylor tentatively ruled Tuesday that prison officials did not follow proper procedures when revising the way the state administers the lethal three-drug cocktail.

Taylor was expected to finalize her decision after government attorneys get a chance to change the judge's mind at a hearing Wednesday.
Officials rewrote the injection method in May, after a federal judge halted executions in the state because he found executioners were improperly trained and equipped.

But Taylor said Tuesday that officials failed to treat the revision as a new state regulation, which requires public comment and the approval of the Office of Administrative Law, among other requirements.

The state contends that the new execution method, which includes the remodeling of the death chamber to make it more spacious and better lit, is limited to only San Quentin Prison in Marin County and therefore not a statewide regulation.

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.

In Tuesday's tentative ruling on a case brought by two condemned inmates, the judge said “it cannot be denied” the new execution method “implements a statewide policy on lethal injections for condemned inmates, including those condemned inmates who are housed at other institutions throughout the state and later transferred to San Quentin prior to their execution.”

Deputy Attorney General Michael Quinn, who is leading the state's legal efforts to restart executions in California, declined to comment late Tuesday.

David Senior, the lawyer representing one of the two plaintiffs, said he expects adoption of the tentative ruling to stall the federal proceedings until the state matter is resolved.

“It will put off everything,” said Senior, who represents convicted rapist and killer Michael Morales in state and federal courts.

Morales, who was convicted of killing 17-year-old Terri Winchell in a Lodi vineyard 26 years ago, came within hours of death in February 2006 before the state called off his execution. 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.

No inmate has been executed in California since January 2006.

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 an 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 Michael Richard was executed in Texas on Sept. 25, the same day the court said it would hear a lethal injection challenge from two death row inmates in Kentucky. State and lower federal courts have halted all other scheduled executions since then.