Hearing on lethal injection protocol begins

By Jason Bennert, Bay City News Service

September 25, 2006

SAN JOSE (BCN) - The federal judge who earlier this year effectively halted the death penalty in California began a historic hearing this morning in which the future of California's lethal injection procedure is at stake.

U.S. District Court Judge Jeremy Fogel began the hearing by noting the wide public interest in the hearing. He reminded the courtroom audience that he would not be ruling of the legality of the death penalty itself but only on California's method of execution.

"The issue is a very narrow one - whether the protocol for lethal injections that has been proposed by the state meets constitutional standards," Fogel said.

In a brief opening statement, John Grele, the attorney for condemned killer Michael Morales, said California's proposed lethal injection procedure was "both disturbing and frightening" and "a story of unnecessary risk."

State officials did not consult with physicians or experts about the drugs used in lethal injections when they created the proposed procedure, according to Grele.

"They spent an hour-and-a-half with lawyers" to create the procedure, Grele said.

California Senior Assistant Attorney General Dane Gillette said in his opening statement that "lethal injection is not a medical procedure. It is a lawful method of execution."

"The new protocol will, we submit, render the inmate unconscious and he will remain unconscious," throughout the execution, Gillette said.

Morales was just hours away from being strapped onto the gurney in San Quentin's execution chamber in February when Fogel effectively halted the execution by ordering the state to have a "qualified individual" licensed by the state to administer drugs intravenously be present in the execution chamber during the execution and participate in the lethal injection procedure. Every "qualified individual" prison officials approached, all physicians, refused to participate in the execution on ethical grounds.

Since February the state has developed a new lethal injection procedure. Following this week's hearing, scheduled to last through Friday, Fogel will rule on whether or not the new procedure is constitutionally permissible or if it meets the definition of "cruel and unusual punishment" and is unconstitutional.

Morales is on death row for the 1981 rape and murder of Terri Winchell, a 17-year-old girl from Lodi.

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