Agreeing that lethal injection may cause excessive pain, a federal judge told state corrections officials Tuesday to change the way they administer the fatal dose, or face a delay in death row inmate Michael Morales' Feb. 21 execution.
U.S. District Judge Jeremy Fogel said in a 15-page ruling that San Quentin State Prison officials may either administer fatal levels of sedatives exclusively or have an anesthesiologist present to ensure that Morales is unconscious before they deliver the standard mix of sedatives, paralytic agents and heart-stopping chemicals.
"It is hoped that the remedy ordered by this federal court in this case will be a one-time event," said Fogel, of the U.S. District Court in San Jose.
Death penalty opponents were elated by Fogel's decision.
"This is a historic decision," said Natasha Minsker, director of death penalty policy for the American Civil Liberties Union in Northern California. "This is the first time a federal judge has concluded that there is substantial evidence that people may be suffering pain during the lethal injection process."
"Judge Fogel noted that in six of the past 13 executions something went wrong," she said, "and there is reason to believe that in those six cases, people were suffering."
With regard to Morales' Feb. 21 execution date, however, Minsker said, "It's hard to say what will happen next."
State corrections officials have until Thursday to decide whether to accept Fogel's proposal of using sedatives, or until today to select an anesthesiologist. Morales would have until Thursday to comment on the medical professional who is chosen.
Neither the state attorney general nor Morales' attorneys would say whether they plan to appeal Fogel's ruling. California began executing prisoners by injection in 1996 after a federal appeals court ruled that San Quentin's gas chamber violated the Constitution's ban on cruel and unusual punishment.
If state officials reject Fogel's options, the court will stay the execution and hold an evidentiary hearing in early May on Morales' assertions that execution by lethal injection is unconstitutional.
In his ruling, Fogel acknowledged that sedatives alone could possibly prolong the execution by as much as 45 minutes.
But pointing in part to problems encountered during the recent executions of Stanley Tookie Williams and Clarence Ray Allen, Fogel also said Morales had raised legitimate fears that unexpected problems during the lethal injection process could cause extreme pain.
On Dec. 13, a profusely sweating prison nurse poked a needle into Williams' muscular arm again and again, searching for a vein to deliver the lethal chemicals.
On Jan. 17, Allen, California's oldest condemned inmate, required two doses of potassium chloride to stop his heart.
California corrections officials -- like those in the 36 other states that rely on lethal injection -- execute condemned inmates with a combination of three chemicals: 5 grams of sodium thiopental, a short-acting barbiturate; 50 or 100 milligrams of pancuronium bromide, which paralyzes all voluntary muscles; and 50 or 100 milligrams of potassium chloride, which induces cardiac arrest.
In theory, the barbiturate renders the inmate unconscious long enough for the potassium chloride to stop his heart. Without the barbiturate, the heart-stopping injection would cause intense burning pain. But with it, state lawyers argue, the inmate feels nothing.
Each chemical is given in a dosage that is lethal by itself, Fogel said. They are administered through an IV started in two veins -- one is a backup.
Morales' lawyers argue that the barbiturate may not always work effectively. Because the second paralytic drug freezes all of an inmate's muscles, the prisoner may have no way of signaling whether he or she is still conscious and able to feel the third chemical.
Even state corrections authorities agree that a person injected with the second and third chemicals while conscious would experience excruciating pain. They assert, however, that the dosage of the barbiturate is more than enough to ensure Morales would be unconscious before receiving the drugs.
On Monday, Fogel asked state corrections officials two questions indicating that he had doubts as to whether the procedure worked as intended.
He asked whether it would be feasible to proceed with the execution using the sedatives exclusively.
State authorities said that although it would be possible to kill Morales using only barbiturates, it could take as long as 45 minutes for him to die.
Since the current method of execution results in death in an average of 11 minutes, the authorities said they did not support the exclusive use of a sedative.
Fogel also asked if it would be feasible to apply an independent means -- such as a medical device or a qualified individual -- to ensure that Morales is unconscious before the second two injections are administered.
State authorities responded that they were unaware of any devices that were easily obtainable and effective in monitoring consciousness. However, they said, San Quentin State Prison Warden Steven Ornoski could monitor Morales inside the execution chamber.
It was not clear whether Ornoski's credentials met Fogel's call for a qualified individual with formal training in anesthesiology.
Fogel's ruling appeared to place Morales' fate in the hands of Gov. Arnold Schwarzenegger, who is reviewing Morales' plea for clemency.
On Tuesday, former Whitewater independent counsel Kenneth W. Starr urged Schwarzenegger to focus on the facts of the case in weighing whether to spare Morales' life, and not on the allegedly fake jurors' affidavits recently submitted in support of his bid for clemency.
The defense legal team, which Starr joined 20 days ago, has withdrawn the questionable affidavits generated by defense investigator Kathleen Culhane, who has been released from the case. It also has launched an investigation into the disputed documents.
"It would be profoundly unjust now," Starr said in a statement, "for the wrongdoing -- if there was any wrongdoing -- on the part of a single investigator in the clemency effort to compromise, much less jeopardize, the plea for mercy."
Morales, 46, of Stockton, was convicted of the 1981 rape and murder of Terri Winchell, a 17-year-old Lodi high school student. Morales was sentenced to death in 1983.
Starr noted that the trial judge, Charles R. McGrath, has concluded that more recently uncovered evidence appears to undermine the basis of a capital murder charge against Morales.
Specifically, "Michael was condemned, wrongly, by the false testimony under oath," Starr said, "by a profoundly untrustworthy jailhouse informant and serial felon."
Prosecutors have argued that jurors did not rely on the informant's testimony when they unanimously recommended that Morales be executed.