Death Penalty

Judge bars new plan for
executions


The jurist rules that state broke the law by not seeking public comment or independent review.By Henry Weinstein
Los Angeles Times Staff Writer

November 1, 2007

SAN RAFAEL, Calif. -- A Marin County judge issued an injunction Wednesday that bars California from using a new plan to execute condemned inmates by lethal injection.

Earlier this year, the state revised how it would administer lethal injection after a federal judge stopped executions in California, finding that they risked inflicting cruel and unusual punishment on death row inmates.

Judge Lynn O'Malley Taylor's ruling, issued late Wednesday, held that the state broke the law by redesigning its execution procedures without seeking public comment or submitting them to review by an independent state agency.

The decision, which finalized a tentative ruling the judge issued Tuesday, means that it could be many months before another execution occurs in California.

The last person to be executed in the state was Clarence Allen in January 2006. A month later, a federal judge issued a stay to Michael Morales, who filed the constitutional challenge to California's lethal injection, and there has been a de facto moratorium on state executions since then.

Taylor acted a day after the U.S. Supreme Court issued a stay of execution to a death row inmate in Mississippi only 17 minutes before he was to be put to death.

Legal experts said the stay, and others issued in recent weeks, are a signal that the high court wants states to hold off further executions until it rules on a challenge to lethal injection procedures. The case, called Baze vs. Kentucky, is scheduled to be heard Jan. 7.

Attorneys Brad Phillips and Adam Badawi, of Munger, Tolles & Olson, who represented the death row inmates, said they were pleased with Taylor's ruling.

Phillips said the public process outlined in the decision could take months, and would allow for input from interested parties and experts, including doctors.

California Department of Corrections and Rehabilitation Secretary James E. Tilton said the state would appeal the ruling.

"These new protocols comply with state laws and are designed to ensure that the lethal injection process is constitutional and will stand up to all legal challenges . . . [we] will continue to work to ensure that the law in California is upheld and that the death penalty is enforced," he said.

The Marin County case had been pending for more than a year but had drawn far less attention than the other legal challenge to California's lethal injection procedure -- a case still pending before U.S. District Judge Jeremy Fogel in San Jose.

Last December, Fogel ruled that how California used lethal injection exposed inmates to the risk of excessive pain, in violation of the Constitution's ban against cruel and unusual punishment.

California, like three dozen other states, uses a three-drug cocktail for execution. The chemicals are sodium thiopental, an ultra-fast-acting barbiturate aimed at anesthetizing the inmate; pancuronium bromide, which paralyzes the inmate, and potassium chloride, which causes cardiac arrest.

Critics contend that the second drug can prevent the inmate from speaking or otherwise reacting to extreme pain from the heart-stopping drug.

After Fogel's ruling, the state drew up a new lethal injection plan, largely behind closed doors. Attorneys for Morales said aspects of the new procedure are even worse than objectionable features in the old one. Fogel has scheduled a hearing on the new plan for Dec. 10 and 11.

Wednesday evening, San Francisco attorney John Grele, one of Morales' lawyers, said Taylor's ruling was "an important event in the lethal injection litigation and one the state needs to think about seriously."

"Any decision that allows for more public scrutiny and public involvement in the process is important," he said.

Grele said that after Judge Fogel held an extensive proceeding last year, including a personal visit to the San Quentin death chamber, he found problems with how the state conducted executions. In his December ruling, the judge said that executioners had demonstrated a "pervasive lack of professionalism" that he found "at the very least deeply disturbing."

"This case has shown that when state officials do things outside public scrutiny, they are not always done correctly," Grele said.