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Sparring Over Lethal Injection

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Times Staff Writers

During the first day of a trial on the constitutionality of California’s lethal injection method of execution, an expert on pharmacology said the drug used to anesthetize inmates wears off “extremely fast” and potentially exposes prisoners to painful deaths.

“There is a possibility that inmates could emerge [from unconsciousness] and experience a painful execution,” Dr. William Ebling, who has done extensive research on anesthetics, testified Tuesday in a San Jose federal courtroom.

He called California’s execution procedure a “one-size-fits-all” plan that ignores the fact that drug dosages must be adjusted to a person’s size, health history and other factors.

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Ebling was among several witnesses -- including several who had viewed executions -- to portray lethal injection as fraught with uncertainty, a process that appears to render some prisoners clearly unconscious before death while others heave and convulse in what looks like agony.

The four-day trial here is one of several court proceedings around the nation in which lethal injection is under challenge as a violation of the U.S. Constitution’s ban on cruel and unusual punishment. Executions have been put on hold in California pending the outcome of the litigation, brought by condemned inmate Michael Morales, who was sentenced to death for the 1981 murder of Terri Winchell, 17, in Lodi.

U.S. District Judge Jeremy Fogel stressed that condemned inmates are not entitled under the Constitution to a painless death.

“This is not about whether it is appropriate or inappropriate for the person being executed to suffer pain,” he said. “It is inaccurate to say that an execution has to be painless,” but it cannot under the law “inflict severe degrees of pain.”

Like three dozen other states, California uses a three-drug cocktail for executions: sodium thiopental, a barbiturate anesthetic; pancuronium bromide, which paralyzes the inmate; and potassium chloride, which causes cardiac arrest. Critics say the anesthetic may fail, and thus the paralytic would merely mask the intense pain the inmate experiences from the heart-stopping chemical.

Senior Assistant Atty. Gen. Dane Gillette, lead lawyer for the state, said his side would demonstrate that a new procedure that California adopted in response to questions about the drug cocktail -- requiring a continuous infusion of anesthetic rather than a one-time delivery -- would meet constitutional standards. Gillette said the state would not concede that the former procedure was unconstitutional but acknowledged a problem in the execution last year of Stanley Tookie Williams, a gang leader and murderer.

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In that case, the execution team failed to insert a backup line for the anesthetic -- a fact that Morales’ lawyers uncovered in a deposition. Gillette called the episode “a lesson well learned, one that will never happen again.”

John Grele, one of Morales’ lawyers, said his side would present “disturbing and frightening” information about how lethal-injection executions have been conducted. He also asserted that California’s new procedure, adopted since Morales’ execution was called off in February, was drawn up hastily and primarily by lawyers -- not experts on the use of the drugs.

“As a result, we have a protocol that, if it’s going to effective, it will be effective by chance alone,” Grele said.

Ebling, the expert on pharmacology, said the anesthetic employed in California was an older drug that was used in medical procedures to induce anesthesia and typically was followed by other drugs to sustain unconsciousness.

Fogel asked him if there was a second drug that could be given intravenously to ensure that an inmate did not regain consciousness. Ebling said he could not answer the question with any certainty.

Asked by the judge whether it would be possible to kill someone just using thiopental or another barbiturate, Ebling responded in the affirmative. But, he quickly added, it would take longer -- perhaps 30 to 40 minutes -- and he said “it’s an ugly death,” referring to how the inmate’s respiratory system would collapse.

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Supervising Deputy Atty. Gen. Ron Mathias pointed out that anesthesiologists treating patients not slated for death must wrangle with how much of a drug to give to avoid pain while safeguarding them.

Executions are “not half as hard,” Mathias said.

The state’s new procedure for lethal injection requires that the anesthetic be administered slowly over the course of the execution. Ebling testified that doctors would never require that an anesthetic be administered “slowly” because that has no meaning in science.

In fact, he said, “faster is better” as long as the other two drugs are also given in rapid succession. He said a review of execution logs showed different intervals between administration of the drugs in different executions.

Ebling also said that a person experiencing high stress would be harder to anesthetize than a calm patient and that severe pain could cause an inmate to regain consciousness.

When repeatedly pressed for a formula that would keep an inmate unconscious during an execution, Ebling grew exasperated: “We simply don’t do studies where they suffocate somebody and find out when they will wake up.”

Ebling’s testimony followed statements by a veterinarian who said he would not use the state’s lethal-injection procedure on an animal because it could “lead to pain and suffering.”

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An animal must be monitored during euthanasia, Dr. Kevin Concannon, a veterinary anesthesiologist, testified. No doctor monitors an inmate during an execution; medical ethics codes forbid participating in a killing.

The lethal-injection procedure is particularly risky because the second drug would paralyze the animal, making it impossible to know if it was suffering, Concannon said.

Deputy Atty. Gen. Mathias pointed out that an American Veterinary Medical Assn. guide to euthanasia says its findings cannot be extrapolated to humans. But Concannon said the “court would be doing a disservice” if it did not take into account the research and developments in euthanasia on animals.

Dr. Mark Heath, a Columbia University anesthesiologist who has testified for condemned inmates in numerous challenges to lethal injection around the country, said he was confident that a humane lethal injection procedure could be designed. “I’m sure it can be,” he said.

Asked by Ginger Anders, one of Morales’ attorneys, if he knew of a good protocol, Heath responded that “Missouri is heading in the right direction,” because a federal judge there insists that a doctor be present to make sure the inmate is properly anesthetized before the lethal potassium chloride is administered.

Heath testified that the revised California procedure has “many gratuitous risks” of inflicting unnecessary pain and is worse than its predecessor.

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Heath also asserted that the paralytic drug serves no useful function, because it neither anesthetizes nor kills. Asked why it was utilized, he said two expert witnesses who support its use said it “serves to stop [agonizing] movements associated with death that would be disturbing to witnesses.”

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maura.dolan@latimes.com

henry.weinstein@latimes.com

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