State's new execution plan is challenged in court

Death row inmate's lawsuit alleges that California corrections officials rushed through the reform process, and that the procedure they sent forward is likely to cause pain.

By Carol J. Williams, Los Angeles Times

3:32 PM PDT, August 2, 2010

A death row inmate convicted of the 1985 torture and murder of a pizza deliveryman in Glendale asked a court Monday to strike down the state's newly revised execution procedures as illegal and likely to inflict excruciating pain if used on any of California's 700-plus condemned prisoners.

The lawsuit filed by Mitchell Sims, 50, alleges that the California Department of Corrections and Rehabilitation rushed through revisions of the lethal injection procedures and deliberately sought to shut the public out of the process.

Corrections officials approved the changes one day before a May 1 deadline and sent them to the Office of Administrative Law for endorsement. That office endorsed the changes late April 30, allowing the execution plans to move forward to state and federal courts for review.

Executions have been on hold in California since early 2006, when U.S. District Judge Jeremy Fogel expressed concern that some of the 13 death sentences carried out in the state in the past two decades might have exposed prisoners to unconstitutionally "cruel and unusual punishment."

As in most of the 35 states that allow the death penalty, California used a three-drug method that was intended to anesthetize the condemned prisoner with the first shot, paralyze him with the second and stop his heart with the third.

Fogel was persuaded by expert witnesses who said some of those executed may not have been fully unconscious when they got the painful last injection.

After Fogel ordered reform of the procedures, a task force named by Gov. Arnold Schwarzenegger initially rewrote the new plan behind closed doors. Marin County Superior Court Judge Lynn O'Malley Taylor struck down that rewrite as illegal because the state failed to seek public comment as required by the Administrative Procedures Act.

Corrections officials have spent the last two years tinkering with the procedures to incorporate small changes suggested in some of the more than 20,000 public comments.

Sims, charged with killing Domino's deliveryman John Harrington as part of a cross-country rampage against the pizza company that once employed him, has exhausted all of his appeals, said his attorney, Sara Eisenberg. Only a handful of the 705 on death row are available for execution once the penalty is resumed.

carol.williams@latimes.com