Morales' lawyers petition court for further appeal review

By Adam Martin, Bay City News Service

February 19, 2006

By Bay City News Service - An attorney for condemned inmate Michael Morales said he has petitioned the federal 9th Circuit Court of Appeals for an expanded hearing to review an appeal of Morales' death sentence.

The court today denied Morales' two appeals, which he filed Friday when Gov. Arnold Schwarzenegger refused to grant him clemency. Morales was sentenced to death for murdering Terri Winchell, 17, of Lodi, in 1981 by trying to strangle her and then beating her with a hammer and stabbing her. He was also convicted of raping her.

While he does not deny his guilt, Morales, through his appeals, challenged California's lethal injection procedure and claimed that a key prosecution witness lied at his 1983 trial.

In the lethal injection case, Morales appealed a ruling in which a federal judge in San Jose said the execution can proceed so long as the state provides a trained anesthesiologist to make sure that Morales is unconscious after the first of three chemicals is injected. Morales' brief argued that, even with that safeguard, he would be at risk of pain, which would constitute cruel and unusual punishment.

A three-judge panel wrote in a ruling today that "the district court's orders adequately address Morales' concerns. The orders provide specifically that an anesthesiologist will 'independently verify, through direct observation and examination..., in a manner comparable to that normally used in medical settings where a combination of sedative and paralytic medications is administered, that [Morales] in fact is unconscious before either pancuronium bromide or potassium chloride is injected.'"

John Grele, the lawyer working on Morales' lethal injection appeal, said today that he has filed a petition to have that ruling reviewed by an expanded court of 15 appellate judges.

"We think the case has serious meritorious issues that the full court needs to review. The court cannot adopt last-minute 'quick fixes' to resolve glaring deficiencies in California's lethal injection procedures," Grele said today.

Grele said the court order to have an anesthesiologist on hand did not necessarily guarantee that Morales would not suffer.

Specifically, Grele objected to language in today's ruling that states, "we construe the order as clearly contemplating that they have the authority to take 'all medically appropriate steps...' to immediately place or return Morales into an unconscious state or to otherwise alleviate the painful effects [of the lethal drugs]."

The three judges, Grele said, "are construing and attempting to interpret vague language, without ordering the state to comply."

The court has not yet issued an official response, accepting or denying Grele's petition. Spokesman Nathan Barankin was not immediately available for comment.

Morales' other appeal, claiming that witness Bruce Samuelson lied when he testified that Morales had confessed to him while they were both in jail, was denied because the basic thrust of the argument had been heard and denied previously, according to the court.

Morales claimed that Samuelson's false testimony was the basis for a lying-in-wait enhancement that caused him to be sentenced to death.

The court, however, wrote that "Morales' application does not rest on 'a new rule of constitutional law' that requires relief, so [it] is not applicable."

Lawyers for the attorney general had previously claimed that Samuelson's testimony was not instrumental to Morales' receiving a death sentence because it was corroborated by other testimony and Morales' own confession.

There is no word yet from Morales' attorney David Senior whether he will petition for an expanded hearing to review that appeal.

After petitioning for the expanded appellate court hearing, Morales' next and final option is to take his case to the U.S. Supreme court.

He may have grounds to do this because his objection to the execution method is being treated as a civil rights issue.

Amnesty International, Death Penalty Focus and the American Civil Liberties Union issued a joint statement Friday calling the modified death penalty procedure "disturbing," because "for the first time in the history of this country, a medical doctor will be inside the execution chamber and another will be outside, assisting the execution."

Morales' upcoming execution has garnered nation-wide attention. Pepperdine University School of Law Dean Kenneth Star, the former independent counsel whose investigation led to the impeachment of former President Bill Clinton, worked on Morales' clemency plea. He has said he joined the clemency team because he believes Morales is remorseful and was sentenced to death on the basis of false testimony.

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