Hearing Set on Lethal Injections

A federal judge on Thursday set a Feb. 9 hearing to consider a condemned inmate’s claims that California’s lethal injection procedures violate the U.S. Constitution’s prohibition against cruel and unusual punishment.

U.S. District Judge Jeremy Fogel in San Jose refused to call an immediate halt to Michael A. Morales’ Feb. 21 execution, but agreed to hear a motion for a preliminary injunction well before the death date. Morales, 45, was sentenced to death for the 1981 murder in Lodi of Terri Winchell.

Fogel’s action came just one day after the U.S. Supreme Court halted Florida’s planned execution of Clarence E. Hill, also on the basis of a constitutional challenge to lethal injection. Hill was convicted in the 1982 murder of a Pensacola, Fla., police officer.

In another potentially significant development, Morales’ supporters said Thursday that Kenneth W. Starr, the dean of Pepperdine University law school who served as U.S. solicitor general, would ask Gov. Arnold Schwarzenegger to grant executive clemency to the inmate. The clemency petition is due today at 5 p.m. Schwarzenegger has denied all four requests for clemency that he has received from death row inmates.

“Starr is entering the case because Morales immediately took responsibility for his actions, was distraught with remorse and has made impressive and consistent efforts to atone for his crime in prison,” said a statement issued by the American Civil Liberties Union of Northern California and Death Penalty Focus, a San Francisco group that opposes capital punishment. A Pepperdine spokeswoman confirmed that Starr is now working on Morales’ behalf, but said he was unavailable for comment.

Morales’ attorneys said they were cheered by the judge’s action. “I think it is a positive development,” said David A. Senior of Los Angeles, Morales’ lead lawyer.

California corrections officials execute condemned inmates at San Quentin State Prison by administering a lethal combination of three chemical substances: sodium pentothal, a short-acting barbiturate; pancuronium bromide, which paralyzes all voluntary muscles; and potassium chloride, which causes cardiac arrest.

California is one of 37 states that use lethal injection for executions.

Earlier this month, Morales’ attorneys sued California officials, asserting that the procedure “was adopted without any medical research or review to determine that a prisoner would not suffer a painful death.” The suit was filed by Senior, John R. Grele of San Francisco and Richard P. Steinken of Chicago law firm Jenner & Block, which has worked pro bono on death penalty cases across the country.

The procedure “lacks medically necessary safeguards, thus increasing the risk that [Morales] will suffer unnecessary pain during the lethal injection process,” the suit asserts. Moreover, the state’s protocol “identifies no procedures for ensuring that the anesthetic agent is properly flowing into the prisoner, and it identifies no procedures for ensuring that the prisoner is properly sedated prior to the administration of the lethal chemicals, as would be required in any medical or veterinary procedure before the administration of a neuromuscular blocking agent, such as pancuronium bromide, or the administration of a painful potassium chloride overdose.”

Lawyers from the California attorney general’s office oppose the challenge, said Nathan Barankin, the chief spokesman for Atty. Gen. Bill Lockyer.

“Our belief is that, based on the expert medical testimony we have provided and has been provided in courts across the country, lethal injection is the most humane and pain-free method of carrying out a death sentence,” Barankin said.