Judge Orders a Kinder Execution for Morales

http://www.latimes.com/news/local/la-me-morales15feb15,0,1491215.story?coll=la-home-headlines
Judge Orders a Kinder Execution
By Louis Sahagun
Times Staff Writer

6:00 PM PST, February 14, 2006

A federal judge today refused to delay death row inmate Michael Morales' Feb. 21 execution, but told prison officials they would have to change how they administer the lethal injection that kills him.

In his ruling, Judge Jeremy Fogel said officials either must kill Morales with barbiturates alone, or provide an anesthesiologist or other medical professional to monitor that the prisoner is unconscious before they deliver a fatal dose of a heart-stopping chemical.

Fogel acknowledged that the change would probably prolong the execution, but said Morales had raised legitimate questions that the state's procedures are excessively painful, relying in part on problems encountered during the recent executions of Stanley Tookie Williams and Clarence Ray Allen.

Lawyers had requested that Fogel stop the Morales execution by arguing that lethal injection is not always a rapid, pleasant way of producing unconsciousness and painless death.

California corrections officials now execute condemned inmates with a combination of three chemicals: sodium pentothal, a short-acting barbiturate; pancurium bromide, which paralyzes all voluntary muscles; and potassium chloride, which causes cardiac arrest.

In theory, the sodium pentothal renders the inmate unconscious long enough for the potassium chloride to kill him. Without the sodium pentothal, the injection of potassium chloride would cause intense burning pain. With it, state lawyers argue, the inmate feels nothing.

Although lethal injections have been used for more than a quarter century, Morales' lawyers argued that they violate the Constitution's ban on "cruel and unusual punishment."

In recent weeks, the U.S. Supreme Court has temporarily blocked executions in two Florida cases to allow time for lower court judges to consider arguments against lethal injection.

Morales' lawyers argued that recent executions have gone awry. On Dec. 13, a profusely sweating prison nurse poked Williams' muscular arm 12 minutes before finding a vein to deliver the toxic cocktail. In Allen's execution, he required a second dose of potassium chloride to stop his heart.

On Monday, Fogel asked the Department of Corrections whether it would be feasible to proceed with the execution using only the bromide chemical.

Morales, 46, of Stockton, was convicted in 1983 of murdering Terri Winchell, 17, who was found beaten, stabbed and raped in a secluded San Joaquin County vineyard.

Fogel's ruling is expected to be appealed to the U.S. 9th Circuit Court of Appeals and the U.S. Supreme Court, possibly by this weekend.

The U.S. Supreme Court has never found any method of execution to be unconstitutional. Fogel has previously rejected two other challenges to lethal injection, but those rulings were based primarily on procedural grounds.

Morales' lawyers in the San Jose case are David A. Senior of Los Angeles, John R. Grele of San Francisco and Richard P. Steinken of Chicago.

Earlier this week, former Whitewater independent counsel Kenneth Starr and Senior withdrew unreliable affidavits — purportedly from jurors — which had been submitted to Gov. Arnold Schwarzenegger as part of a parallel bid to spare Morales.

The bulk of the documents supporting clemency for Morales were denounced by prosecutors as forgeries. Senior withdrew the papers, saying they should not affect central issues in the appeal.