Monday, December 01, 2008

Despite justices' decision, challenge could block California executions

By DENNY WALSH
THE SACRAMENTO BEE

last updated: April 17, 2008 08:24:21 AM

The U.S. Supreme Court gave the green light Wednesday to a resumption of capital punishment nationwide, ruling that the three-drug lethal injection practiced by California and most other states passes constitutional muster.

But the justices' 7-2 decision does not necessarily mean the moratorium on executions in California will be lifted soon.

A number of experts point to a Marin County Superior Court judge's decision in November that the state's rewriting of its lethal injection methods should have been done with public input, including hearings.

Prison officials revamped the lethal injection process in private to satisfy a federal court challenge, and the state has appealed the Marin judge's ruling to the 1st District Court of Appeal in San Francisco.

"We don't really know what the protocol in California is going to look like until that case is resolved," said attorney Richard P. Steinken, one of the lawyers challenging California's injection procedures in federal court.

Ty Alper, associate director of the Death Penalty Clinic at the University of California at Berkeley School of Law, agreed.

"What's now holding up executions in California is that case," Alper said. "We won't know what the state's procedure might be until that case plays out."

But state officials were confident that executions will resume quickly.

"Today's U.S. Supreme Court decision supports California's lethal injection protocol and allows our (federal) case to move forward," Gov. Schwarzenegger said in a statement.

Attorney General Jerry Brown said "the court has obviously upheld the death penalty ... so you can expect rather quickly the death penalty will resume in California."

Brown spokesman Gareth Lacy said there is a status conference set for June 12 on the federal challenge before U.S. District Judge Jeremy Fogel in San Jose, and the Kentucky case decided by the high court Wednesday no doubt will top the agenda.

The Kentucky case was not about the constitutionality of the death penalty or even lethal injection.

Instead, two death row inmates contended that their executions could be carried out with less risk of pain.

Chief Justice John Roberts backed the three-drug cocktail used in Kentucky and most other states. He suggested that the court will not halt executions unless "the condemned prisoner establishes that the state's lethal injection protocol creates a demonstrated risk of severe pain."

Other states using lethal injection stayed executions after the Supreme Court agreed in September to take the Kentucky case.

But California has been on hold since February 2006, when Fogel halted the execution of Michael Morales of Stockton, convicted of raping and murdering 17-year-old Terri Winchell of Lodi in 1981.

Ten months later, Fogel ruled that California's lethal injection methods violate the Eighth Amendment prohibition of cruel and unusual punishment.

California and at least 29 states use a three-drug cocktail that in lawsuits has been blamed for excruciatingly painful deaths.

Condemned inmates may not be fully anesthetized before a heart-stopping drug kicks in but are helpless to express pain because one of the drugs paralyzes them, inmates' attorneys claim.

Fogel found that evidence of a variety of problems with the state's processes was "more than adequate to establish a constitutional violation."

State officials submitted a revised protocol to Fogel a year ago, sticking with the three drugs but saying they would adjust doses and train staff to ensure inmates are unconscious.

But Morales' lawyers countered that the proposed procedure "utterly fails to even examine the many 'substantial questions' recognized by (Fogel) regarding the significant risk" their client will be in pain.

Fogel was in the process of examining the state's plan when the Supreme Court decided to weigh in on the issue.

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