Judge wants California to change lethal injection
February 15, 2006
By Jason Bennet, Bay City News Service
SAN JOSE (BCN) - Michael Morales will only be executed
on Feb. 21 if California prison officials agree to meet one of
two conditions laid down by a federal judge today; otherwise the
judge will delay the execution.
U.S. District Judge Jeremy Fogel ruled that prison officials
must either change the drugs they use in the lethal injection
procedure or have a "qualified individual'' with "formal
training and experience in the field of general anesthesia'' in
the execution chamber throughout the procedure. That individual
would have to determine that Morales is, in fact, unconscious
before the final two drugs California currently uses in its three
drug lethal injection procedure are administered.
"If the defendants reject both of the alternatives described
above, a stay of execution will issue without the necessity of
further proceedings,'' Fogel wrote in his order.
California's current execution procedure involves the administration
of three drugs to a condemned prisoner. First, sodium thiopental,
a barbiturate, is administered to render the prisoner unconscious.
Then, two additional drugs, pancuronium bromide and potassium
chloride, are administered to stop the prisoner's breathing and
According to evidence presented in court, the dose of sodium
thiopental administered is enough on its own to kill the prisoner.
Fogel, as his first condition, suggests prison officials consider
using it alone, or "another barbiturate or combination of
barbiturates'' to execute Morales. He initially proposed this
to state officials in a filing on Monday only to have the California
attorney general's office reject it, saying that using that method,
the execution could take as long as 45 minutes.
"Proceeding with only the thiopental would unnecessarily
delay completion of the execution and would be unfair to the witnesses
and execution team,'' California Senior Assistant Attorney General
Dane Gillette wrote in a court filing on Monday.
Fogel took issue with the state's position in a footnote in his
Fogel wrote that there is "no evidence in the record to
support defendants' claim that the execution could last as long
as 45 minutes,''Fogel wrote.
Fogel also noted that using only the thiopental would be less
of a delay that a stay of execution.
Gillette's Monday filing also seemed to preclude including a
"qualified individual'' of the type described by Fogel inside
the execution chamber. The filing designated acting San Quentin
Warden Steven Ornoski as the individual who would determine whether
Morales had stopped breathing before the final two drugs were
A spokesman for the state attorney general's office was not immediately
available to respond to Fogel's order. Previously, Gillette had
indicated that the attorney general's office would appeal to the
Circuit Court of Appeals if Fogel halted the execution.
If the state decides not to meet Fogel's conditions and he is
not overruled by a higher court, then a full hearing on whether
California's lethal injection procedure constitutes "cruel
and unusual punishment'' would be held in Fogel's San Jose courtroom
beginning on May 2.
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