Fogel criticizes California officials for lethal
injection execution procedure
Photo courtesy Stanford
By Jason Bennert, Bay City News Service
SAN JOSE (BCN) - The federal judge who effectively halted
executions in California earlier this year and who today declared
the state's current lethal injection procedure unconstitutional
is prepared to let executions resume if state officials develop
a new procedure.
U.S. District Court Judge Jeremy Fogel issued a 17-page ruling
today that declared the lethal injection procedure, known as OP
770, unconstitutional. However, he made it clear that "lethal
injection is broken, but it can be fixed.''
Fogel issued the ruling in an appeal of the 1983 death sentence
of Michael Morales, who was convicted in the 1981 rape and murder
of Lodi teen Terri Winchell.
Department of Corrections photo
"Because the court is prepared to find that the sequence
of three drugs described in OP 770 when properly administered
will provide for a constitutionally adequate level of anesthesia,
and given that the deficiencies in the implementation of the protocol
appear to be correctable, a thorough, effective response to the
issues raised in this memorandum likely will enable the court
to enter such a favorable judgment,'' Fogel wrote.
In California's current three-drug procedure, a condemned inmate
is first injected with sodium thiopental, a barbiturate sedative
that renders a person unconscious. The second drug injected into
the inmate, pancuronium bromide, paralyzes the muscles and the
final drug, potassium chloride, stops the heart. It is an accepted
fact by all parties that if a condemned inmate were conscious
when the pancuronium bromide and potassium chloride were administered,
it would violate the constitutional ban on "cruel and unusual
punishment'' because a conscious person would suffer excruciating
Fogel devoted a considerable portion of his decision to stridently
criticizing state officials for both the way past executions were
conducted and their failure to meaningfully address flaws in the
lethal injection procedure that he has highlighted in written
rulings and during court hearings for much of the past year.
"Given that the state is taking a human life, the pervasive
lack of professionalism in the implementation of OP 770 at the
very least is deeply disturbing,'' Fogel wrote.
Fogel noted that in a September hearing, the state's own expert
anesthesiologist, Dr. Robert Singler, said there was a possibility
that condemned killer Robert Massie was actually conscious when
the final two drugs were administered during his 2001 execution.
"Testifying on behalf of defendants, Dr. Singler opined
that based upon the heart rates reflected in the execution log,
Massie well may have been awake when he was injected with potassium
chloride,'' Fogel wrote.
Fogel cited five areas where he believes the lethal injection
procedure needs to be changed: inconsistent and unreliable screening
of execution team members; a lack of meaningful training, supervision
and oversight of the execution team; inconsistent and unreliable
record-keeping; improper mixing, preparation and administration
of sodium thiopental by the execution team; and the inadequate
lighting, overcrowded conditions, and poorly designed facilities
in which the execution team must work.
Fixing the flaws in California's lethal injection procedure is
the responsibility of elected officials, according to Fogel. In
his ruling he challenged Gov. Arnold Schwarzenegger to undertake
a comprehensive revision of the procedure.
"The court urges the governor's office to take this opportunity
to address seriously now, rather than later, the significant problems
with OP 770 and its implementation,'' Fogel wrote.
Fogel criticized the way state prison officials responded after
he halted Morales' execution in February. At that time, according
to testimony, officials sought to "tweak'' the procedure
so it would pass muster with the judge.
"It seems unlikely that a single, brief meeting primarily
of lawyers, the result of which is to 'tweak' OP 770, will be
sufficient to address the problems in this case,'' Fogel wrote.
Fogel has given state officials 30 days from today to file a
response to his ruling.
A spokesman for outgoing California Attorney General Bill Lockyer
said that the decision about what next step to take, whether to
revise the procedure as Fogel suggests or to appeal Fogel's ruling,
rests with Schwarzenegger.
"The ball's pretty much in the governor's court,'' attorney
general's spokesman Nathan Barankin said.
Schwarzenegger's legal affairs secretary this afternoon issued
a two-sentence statement about the ruling.
"As the ruling provides, the administration will review
the lethal injection protocol to make certain the protocol and
its implementation are constitutional. Gov. Schwarzenegger will
continue to defend the death penalty and ensure the will of the
people is represented throughout the ongoing court proceedings,''
Legal Affairs Secretary Andrea Lynn Hoch said.
Santa Clara University law professor Gerald Uelmen called Fogel's
ruling "very cautious and restrained.''
Uelmen gained national prominence in 1995 as part of the legal
"dream team'' that successfully defended football star O.J.
Simpson when he was charged with murdering his former wife and
The Morales case is one of a number of legal challenges to the
death penalty under way nationwide. Uelmen believes that national
opinion about capital punishment is shifting, in part because
of media attention in the last decade to a significant number
of murder convictions that were overturned by DNA testing.
"I think it's pretty clear that the DNA exonerations are
having a very dramatic effect on opinions about the death penalty.
I think there's a definite erosion of support for the death penalty,''
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