Judge wants California to change lethal injection procecure

February 15, 2006

By Jason Bennet, Bay City News Service

SAN JOSE (BCN) - Michael Morales will only be executed on Feb. 21 if California prison officials agree to meet one of two conditions laid down by a federal judge today; otherwise the judge will delay the execution.

U.S. District Judge Jeremy Fogel ruled that prison officials must either change the drugs they use in the lethal injection procedure or have a "qualified individual'' with "formal training and experience in the field of general anesthesia'' in the execution chamber throughout the procedure. That individual would have to determine that Morales is, in fact, unconscious before the final two drugs California currently uses in its three drug lethal injection procedure are administered.

"If the defendants reject both of the alternatives described above, a stay of execution will issue without the necessity of further proceedings,'' Fogel wrote in his order.

California's current execution procedure involves the administration of three drugs to a condemned prisoner. First, sodium thiopental, a barbiturate, is administered to render the prisoner unconscious. Then, two additional drugs, pancuronium bromide and potassium chloride, are administered to stop the prisoner's breathing and heart.

According to evidence presented in court, the dose of sodium thiopental administered is enough on its own to kill the prisoner.

Fogel, as his first condition, suggests prison officials consider using it alone, or "another barbiturate or combination of barbiturates'' to execute Morales. He initially proposed this to state officials in a filing on Monday only to have the California attorney general's office reject it, saying that using that method, the execution could take as long as 45 minutes.

"Proceeding with only the thiopental would unnecessarily delay completion of the execution and would be unfair to the witnesses and execution team,'' California Senior Assistant Attorney General Dane Gillette wrote in a court filing on Monday.

Fogel took issue with the state's position in a footnote in his ruling today.

Fogel wrote that there is "no evidence in the record to support defendants' claim that the execution could last as long as 45 minutes,''Fogel wrote.

Fogel also noted that using only the thiopental would be less of a delay that a stay of execution.

Gillette's Monday filing also seemed to preclude including a "qualified individual'' of the type described by Fogel inside the execution chamber. The filing designated acting San Quentin Warden Steven Ornoski as the individual who would determine whether Morales had stopped breathing before the final two drugs were administered.

A spokesman for the state attorney general's office was not immediately available to respond to Fogel's order. Previously, Gillette had indicated that the attorney general's office would appeal to the 9th U.S.

Circuit Court of Appeals if Fogel halted the execution.

If the state decides not to meet Fogel's conditions and he is not overruled by a higher court, then a full hearing on whether California's lethal injection procedure constitutes "cruel and unusual punishment'' would be held in Fogel's San Jose courtroom beginning on May 2.

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