Fogel criticizes California officials for lethal injection execution procedure

Photo courtesy Stanford Law School

By Jason Bennert, Bay City News Service

December16, 2006

SAN JOSE (BCN) - The federal judge who effectively halted executions in California earlier this year and who today declared the state's current lethal injection procedure unconstitutional is prepared to let executions resume if state officials develop a new procedure.

U.S. District Court Judge Jeremy Fogel issued a 17-page ruling today that declared the lethal injection procedure, known as OP 770, unconstitutional. However, he made it clear that "lethal injection is broken, but it can be fixed.''

Fogel issued the ruling in an appeal of the 1983 death sentence of Michael Morales, who was convicted in the 1981 rape and murder of Lodi teen Terri Winchell.

Michael Morales
Department of Corrections photo

"Because the court is prepared to find that the sequence of three drugs described in OP 770 when properly administered will provide for a constitutionally adequate level of anesthesia, and given that the deficiencies in the implementation of the protocol appear to be correctable, a thorough, effective response to the issues raised in this memorandum likely will enable the court to enter such a favorable judgment,'' Fogel wrote.

In California's current three-drug procedure, a condemned inmate is first injected with sodium thiopental, a barbiturate sedative that renders a person unconscious. The second drug injected into the inmate, pancuronium bromide, paralyzes the muscles and the final drug, potassium chloride, stops the heart. It is an accepted fact by all parties that if a condemned inmate were conscious when the pancuronium bromide and potassium chloride were administered, it would violate the constitutional ban on "cruel and unusual punishment'' because a conscious person would suffer excruciating pain.

Fogel devoted a considerable portion of his decision to stridently criticizing state officials for both the way past executions were conducted and their failure to meaningfully address flaws in the lethal injection procedure that he has highlighted in written rulings and during court hearings for much of the past year.

"Given that the state is taking a human life, the pervasive lack of professionalism in the implementation of OP 770 at the very least is deeply disturbing,'' Fogel wrote.

Fogel noted that in a September hearing, the state's own expert anesthesiologist, Dr. Robert Singler, said there was a possibility that condemned killer Robert Massie was actually conscious when the final two drugs were administered during his 2001 execution.

"Testifying on behalf of defendants, Dr. Singler opined that based upon the heart rates reflected in the execution log, Massie well may have been awake when he was injected with potassium chloride,'' Fogel wrote.

Fogel cited five areas where he believes the lethal injection procedure needs to be changed: inconsistent and unreliable screening of execution team members; a lack of meaningful training, supervision and oversight of the execution team; inconsistent and unreliable record-keeping; improper mixing, preparation and administration of sodium thiopental by the execution team; and the inadequate lighting, overcrowded conditions, and poorly designed facilities in which the execution team must work.

Fixing the flaws in California's lethal injection procedure is the responsibility of elected officials, according to Fogel. In his ruling he challenged Gov. Arnold Schwarzenegger to undertake a comprehensive revision of the procedure.

"The court urges the governor's office to take this opportunity to address seriously now, rather than later, the significant problems with OP 770 and its implementation,'' Fogel wrote.

Fogel criticized the way state prison officials responded after he halted Morales' execution in February. At that time, according to testimony, officials sought to "tweak'' the procedure so it would pass muster with the judge.

"It seems unlikely that a single, brief meeting primarily of lawyers, the result of which is to 'tweak' OP 770, will be sufficient to address the problems in this case,'' Fogel wrote.

Fogel has given state officials 30 days from today to file a response to his ruling.

A spokesman for outgoing California Attorney General Bill Lockyer said that the decision about what next step to take, whether to revise the procedure as Fogel suggests or to appeal Fogel's ruling, rests with Schwarzenegger.

"The ball's pretty much in the governor's court,'' attorney general's spokesman Nathan Barankin said.

Schwarzenegger's legal affairs secretary this afternoon issued a two-sentence statement about the ruling.

"As the ruling provides, the administration will review the lethal injection protocol to make certain the protocol and its implementation are constitutional. Gov. Schwarzenegger will continue to defend the death penalty and ensure the will of the people is represented throughout the ongoing court proceedings,'' Legal Affairs Secretary Andrea Lynn Hoch said.

Santa Clara University law professor Gerald Uelmen called Fogel's ruling "very cautious and restrained.''

Uelmen gained national prominence in 1995 as part of the legal "dream team'' that successfully defended football star O.J. Simpson when he was charged with murdering his former wife and her friend.

The Morales case is one of a number of legal challenges to the death penalty under way nationwide. Uelmen believes that national opinion about capital punishment is shifting, in part because of media attention in the last decade to a significant number of murder convictions that were overturned by DNA testing.

"I think it's pretty clear that the DNA exonerations are having a very dramatic effect on opinions about the death penalty. I think there's a definite erosion of support for the death penalty,'' Uelmen said.

Copyright © 2006 by Bay City News, Inc. -- Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.

####