Lethal injection evidentiary hearing
to be held May 2, 3

February 22, 2006

By Julia Cheever, Bay City News Service

SAN JOSE (BCN) - In the wake of Tuesday's postponement of the scheduled execution of condemned murderer Michael Morales, the next step in the dispute over the state's execution procedures is an evidentiary hearing on May 2 and 3 before U.S. District Judge Jeremy Fogel in San Jose.

Fogel in a series of orders issued in a lawsuit filed by Morales' attorneys gave state officials the choice of either going ahead with the evidentiary hearing in May or modifying execution procedures.

On Tuesday, corrections officials decided to postpone the execution because they were unable to find trained anesthesiologists or other medically trained personnel to assist with the execution.

That decision meant that Fogel will proceed with the evidentiary hearing in May.

The judge's orders were issued in connection with a lawsuit in which Morales' attorneys say there is a risk the state's procedures could cause extreme pain in violation of the constitutional ban on cruel and unusual punishment.

Fogel said in a Feb. 14 ruling that the issue is quite narrow: "whether or not there is a reasonable possibility" that Morales will be conscious when given the allegedly painful second and third drugs in a sequence and "if so, how the risk of such an occurrence may be avoided.''

Nathan Barankin, a spokesman for California Attorney General Bill Lockyer, said it could take several months for Fogel's eventual ruling and any appeals to be resolved.

Until then, executions in California will be on hold.

Barankin said, "It's our hope the courts will rule expeditiously."

Barankin said that Fogel and the 9th U.S. Circuit Court of Appeals and the U.S. Supreme Court are all familiar with the issues because of the numerous appeals filed during the last week.

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