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State Halts Execution to Review Procedure

Times Staff Writers

Capping a dramatic legal battle that raised questions of medical ethics and the future of lethal injection, California prison officials late Tuesday called off Michael Morales’ execution, saying they were unable to comply with a judge’s conditions for putting the convicted rapist-murderer to death.

The state’s decision means that the execution will be delayed at the very least until early May -- and more likely for many months -- while the federal court in San Jose conducts a formal evidentiary hearing on the constitutionality of the state’s execution procedures.

Although it is unclear whether the continuing legal saga will have a broad effect on the death penalty in California -- the U.S. Supreme Court has never found any method of execution unconstitutional -- several experts said the controversy will probably prompt a reexamination of how executions are conducted here and across the country.

Morales was sitting in a prison cell with his Los Angeles attorney, David Senior, when San Quentin spokesman Vernell Crittendon brought them the news that the execution had been called off.

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“He was quite relieved to find he was not being executed,” Crittendon said. “He smiled and nodded and thanked me.”

It is highly unusual for a death sentence to be stayed in the final hours because of a legal challenge over the method of execution. The May hearing is expected to be the most detailed court examination of the state’s execution methods since the switch from use of the gas chamber to lethal injection in 1996.

The Morales furor began a week ago when U.S. District Judge Jeremy Fogel declared that California’s three-stage drug cocktail of a sedative, paralytic drug and heart-stopping chemical -- the same protocol used in 37 of the 38 states with lethal injection -- could mask, rather than eliminate, an inmate’s pain during execution.

Fogel said the state would have to modify its execution procedure or he would hold a full hearing on the process in May.

To address his concern, prison officials elected to go forward just after midnight Monday with two doctors on hand to ensure that the sedative would be sufficient to deaden the pain of the heart-stopping drug. Just before the execution, however, the two anesthesiologists balked, saying the procedures forced them into the role of executioner, in violation of their medical ethics.

Fogel then said officials could go forward later in the day with a lethal dose of the sedative alone -- administered by a licensed medical professional stationed within the execution chamber rather than by the usual “unseen hand” delivering the fatal drugs from another room.

But just two hours before the new, 7:30 p.m. time for the execution, a deputy attorney general told court officials that it had been called off.

San Quentin spokesman Crittendon said the state “was not able to find any medical professionals willing to inject medication intravenously, ending the life of a human being.”

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“The warden felt it was not ethical to approach an individual who would potentially be putting their license in jeopardy,” Crittendon said. “How would it affect their careers by being involved in the execution process in the manner we’ve been discussing?”

Tuesday’s outcome was applauded by attorney Natasha Minsker, who directs the death penalty project of the American Civil Liberties of Northern California. “We think this is appropriate,” she said. “There will be a hearing so both sides can present their evidence. It is a serious issue that needs careful consideration.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which favors the death penalty, said he thought Tuesday’s outcome was “an unfortunate result. It is based on a very remote possibility that there is a problem with the procedure. It is unfortunate that this is being done at the last minute.”

But he said the delay, while highly unusual, was merely temporary and predicted that it would have no long term consequences on capital punishment.

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Crittendon said Morales spent the day in a death-watch cell 15 feet from the execution chamber. At 3:20 p.m., he visited with his lawyers. Then, at 5:45 p.m., he was returned to the more distant death-row cell he had occupied until Monday.

Crittendon also met with family members of 17-year-old Terri Winchell, whom Morales was convicted of murdering. “They took this very hard,” Crittendon said.

Reached at her Lodi-area home, Terri Winchell’s mother described herself as “knocked down” by the decision. It “was just like someone hit you in the stomach,” Barbara Christian said. “You feel weak, and the pain hurts.... We have lived with a knife in our hearts for all these years, and this makes the knife even sharper.”

The halting of the execution comes as challenges to the constitutionality of lethal injection are spreading across the country. First adopted by Oklahoma when it enacted a new death penalty law in 1977, lethal injection is now the predominant method of execution across the nation.

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The crux of the challenges is that rather than being more humane than a gas chamber or the electric chair, lethal injection masks what can be a very painful death.

Some critics maintain that the problems with lethal injection demonstrate the impossibility of conducting an execution humanely.

“Government officials don’t want the American public to view the death penalty as a lethal, destructive, violent act that isn’t really necessary. Therefore we sanitize and obscure the act of killing a person, who is no longer a threat to anyone, with protocols and procedures that are aimed at comforting the public,” said Bryan Stevenson, executive director of the Equal Justice Initiative of Alabama, who specializes in death penalty appeals.

“The problem is that killing another human being is always painful,” added Stevenson, who also is a professor at New York University School of Law.

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Fordham University law professor Deborah Denno, who has written several scholarly articles on methods of execution, said the hearing in May could lead to changes in the state’s death penalty procedures. She said it was “unprecedented for a judge to get so involved with how the execution protocol is carried out.”

Denno said she thought that was a positive development, because most jurists had not looked closely enough at the actual execution process.

California officials “absolutely made the right choice in delaying the execution and deciding to hold an evidentiary hearing to evaluate lethal injection with the thoroughness and medical oversight that the procedure warrants,” she said. “The state is also setting a standard that other states should follow before they proceed further with their lethal injection executions.”

In lieu of the doctor’s monitoring the inmate’s condition, Judge Fogel had offered to let officials inject Morales, 46, with nothing but 5 grams of the powerful barbiturate sodium thiopental, which was expected to lengthen the execution from the usual 11 minutes to as much as 45 minutes or more.

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But no one could say with certainty how long it would take for Morales to die, because the procedure had never been tried before. Prison officials and legal scholars said they were unaware of other states using a single sedative to carry out executions.

At a hearing in Fogel’s court last week, attorneys for the state said stretching out the process would make it harder for family members who witnessed it, as well as the prison personnel involved in the execution.

Under state law, a death warrant has to be carried out within 24 hours. Normally, executions in California occur at 12:01 a.m. on the date specified by the warrant. But after the delay early Tuesday, corrections officials set the time for 7:30 p.m., affording them 4 1/2 hours to complete the execution before the warrant expired at midnight.

If Morales had not been executed within that time, prosecutors would have had to return to Ventura County Superior Court to seek a new execution date from a judge -- possibly the original trial judge, Charles McGrath, who no longer believes that Morales deserves to die.

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Last month, in a rare move, McGrath -- who sentenced Morales to death in 1983 on the unanimous recommendation of a trial jury -- sent a letter to Gov. Arnold Schwarzenegger urging clemency. McGrath said the jury’s recommendation and his decision to sentence Morales to death were based on false testimony offered by a jailhouse informant.

Morales was convicted in 1983 of torturing, raping and murdering Winchell. Testimony was presented at trial that Morales had agreed to help his cousin Rick Ortega kill Winchell after Ortega learned that his bisexual boyfriend was dating her. Ortega, in a separate trial, was sentenced to life in prison.

Morales tried to strangle Winchell from behind in a car while Ortega was driving, according to trial testimony. After the belt broke, Morales struck her repeatedly in the head with a hammer before dragging her across the road into a vineyard, where he raped her and stabbed her four times in the chest, according to testimony.

Morales, who has admitted the crime, said he was high on PCP at the time and feels deep remorse. His attorneys, including Pepperdine law school Dean Kenneth W. Starr, mounted a vigorous campaign for clemency. Their effort was marred by allegations that one of their investigators had submitted juror affidavits to the governor -- urging commutation to life without parole -- that were forged. Schwarzenegger turned the lawyers down. Then Judge Fogel intervened, and state officials ultimately halted the execution.

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Mack Winchell, Terri Winchell’s 78-year-old father, said the decision Tuesday was a horrible blow.

“It’s awfully hard to put faith in God, then have something like this,” he said. “I will tell you what. I am having a hard time coping with this the last couple months. The strain and stress of it, every day of your life. You just can’t get that girl out of your mind.”

Times staff writers Tim Reiterman, Jill Leovy and Jenifer Warren contributed to this report.


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