Hearings on lethal injection delayed

Times Staff Writer

A federal judge in San Jose has postponed two key hearings in the legal battle over lethal injection, meaning that the state’s 21-month moratorium on the death penalty is likely to extend well into next year.

U.S. District Judge Jeremy Fogel issued an order this week calling off a formal site review of the new death chamber at San Quentin State Prison later this month and postponing hearings on the case scheduled for Dec. 10 and 11 in his courtroom.

Fogel had planned those steps as part of his review of the state’s lethal injection protocols, which have been challenged in the courts as cruel and unusual punishment. His delay signals that it will take even longer for a decision to be made on the state’s ability to legally conduct executions.


Fogel’s decision comes in the wake of an injunction issued last week by a Superior Court judge that barred the state from implementing a new plan to execute inmates using lethal injections. Fogel said he was taking this action at the request of lawyers for the state attorney general’s office and death row inmate Michael Morales.

California last held an execution in January 2006. A month later, state officials called off the execution of Morales -- who has been on death row for nearly 25 years for the murder of Lodi teenager Terri Winchell -- because of a challenge to the state’s lethal injection procedure.

In December 2006, Fogel ruled that California’s lethal injection protocol exposed inmates to the unnecessary risk of excessive pain, in violation of the 8th Amendment, which bars cruel and unusual punishment. Five months later, corrections officials issued a new protocol, saying the changes would “result in the dignified end of life” for condemned inmates.

State officials also said that they would complete this month construction of a larger, better illuminated death chamber specifically designed for lethal injection executions, unlike the old facility, which was built in 1937 as the state’s gas chamber. Morales’ lawyers say aspects of the new protocol are even worse than objectionable practices under the old procedures.

And that new protocol came under additional criticism last week when Marin County Superior Court Judge Lynn O'Malley Taylor ruled that the state broke the law by redesigning its execution procedures without seeking public comment or submitting them to review by an independent state agency.

California Department of Corrections and Rehabilitation Secretary James Tilton said he would appeal that decision and that litigation could also take many more months to resolve.

In his Monday order, Fogel set a new status conference for Jan. 17, 10 days after the U.S. Supreme Court is to hear a challenge to Kentucky’s lethal injection procedures. The case is likely to affect the litigation in California and dozens of other states where inmates have alleged that lethal injection procedures violate the 8th Amendment.

California, like three dozen other states, uses a three-drug cocktail for executions in a procedure where an inmate is strapped to a gurney and hooked up to a line where the chemicals are injected intravenously.

The chemicals are sodium thiopental, an ultra-fast acting barbiturate aimed at anesthetizing the inmate; pancuronium bromide, which paralyzes the inmate; and potassium chloride, which causes cardiac arrest.

Critics contend that the second drug can prevent the inmate from speaking or otherwise reacting to extreme pain from the heart-stopping drug.