Lethal Injection Trial begins in San Jose
This article appeared in the SF Gate on September 26, 2006.Morales lawyers argue lethal injection is unconstitutional
- By DAVID KRAVETS, AP Legal Affairs Writer
When California began using lethal injection as its method of execution in 1994, it was regarded as the humane alternative to death by firing squad, hanging, gas or in the electric chair.
But lawyers for a death row inmate plan to argue before a federal judge Tuesday that even that method — which pumps a three-drug cocktail into the bloodstream — is cruel and unusual punishment.
The litigation surrounding the execution of Michael Morales — condemned for raping, torturing and murdering a 17-year-old Stockton girl 25 years ago — spawned a state moratorium on capital punishment earlier this year.
Lawyers for Morales, 46, claim the injection process can mask an excruciating death if the initial sedative given to the inmate does not work, before a paralyzing agent and finally a heart-stopping drug are administered. To witnesses, it may simply appear that the inmate is falling asleep.
"There's a desire not to cause discomfort to the press, execution team and everybody else who is witnessing it," said Elisabeth Semel, director of the Death Penalty Clinic at the University of California, Berkeley, who spoke on behalf of lawyers challenging the state's execution method.
U.S. District Judge Jeremy Fogel, who put Morales' execution on hold in February, will hear testimony Tuesday from former wardens, execution team members and medical professionals.
Executions also have been halted in Delaware, Missouri, New Jersey as those states, too, face challenges to injection procedures. California is the first to embark on a prolonged legal hearing over lethal injection.
The U.S. Supreme Court has upheld executions in general, and has never declared any form of the death penalty unconstitutional despite the pain it may cause.
Still, the outcome of the case could have reverberations for the future of capital punishment as inmates across the country mount challenges to lethal injections.
Morales' lawyers said the state's effort to make the execution appear painless has further jeopardized the condemned.
Intravenous lines that are more than 6 feet long — allowing executioners to keep their distance from the inmate and remain out of site from witnesses — could kink and malfunction.
If improperly sedated by prison staffers who are not licensed medical practitioners, a paralyzing agent that only makes the inmate appear serene may cause internal burning pain, defense lawyers assert, citing a 2005 article in the British medical journal, the Lancet.
Medical records show Crips gang co-founder Stanley Williams was executed in December even after an executioner failed to hook up a backup intravenous line to be used if one of the others clogged.
Fogel said he was concerned that Williams and five others executed were conscious longer than they should have been.
California Attorney General Bill Lockyer claims the procedure is legal and he hopes to resume executions as 652 killers await their fate on death row, the nation's largest.
"California's lethal injection protocol is a humane and constitutional method for carrying out the criminal sentence imposed on Michael Morales more than two decades ago," said Lockyer spokesman Nathan Barankin. "Unlike Morales' brutal murder and rape of Terri Winchell in 1981, his sentence will be neither cruel nor unusual."
After reviewing medical logs of six San Quentin executions, Fogel blocked Morales' killing and said he had "substantial questions" about whether inmates were still conscious once the paralyzing agent began coursing through their veins.
Logs showed some were still breathing more than a minute after receiving the initial sedative, raising the possibility it was not working properly.
"I suppose from an existential level, we don't know whether someone being executed is suffering too much pain," said Ellen Kreitzberg, director of the Death Penalty College at Santa Clara University. "An execution doesn't have to be without any pain, just without unnecessary pain to be constitutional."
For Morales to be executed, Fogel ordered two licensed anesthesiologists to be on hand at San Quentin to ensure Morales was unconscious. Or, he said, the prison could use just a sedative, but it would have to be injected by a licensed practitioner such as a doctor, nurse, dentist, paramedic or other medical technicians.
Hours before Morales was to be executed, the anesthesiologists withdrew, citing ethical concerns. The prison then opted for the one-drug method, but couldn't find anybody licensed who would perform the injection. A host of medical trade organizations denounced licensed practitioners from participating in state-sanctioned killings.
The three-drug protocol used in previous California executions takes about 10 minutes to kill an inmate while the one-drug method takes 30 minutes or more.
Morales' defense team has said overdosing with sedatives would be more humane than the three-drug cocktail.
Winchell's mother, Barbara Christian, said Monday that she wants Morales to die as intended.
"As a mother, I don't care what kind of pain Morales feels because of what he did to my daughter," she said. "He showed her no mercy when she cried out for it. He deserves no mercy."
The case is Morales v. Tilton, 06-219.
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