Big Lizards:Blog:Entry “If I Should Ouch Before I Die”

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February 15, 2006

If I Should Ouch Before I Die

Hatched by Dafydd

According to the Sacramento Bee, a California federal judge has jumped on the bandwagon of banning lethal injection as a method of executing Michael Morales -- for the rape, brutal beating, and cold-blooded murder of seventeen year old Teri Winchell -- because lethal injection might be painful (hat tip to Bee-blogger Daniel Weintraub).

The judge, Jeremy Fogel (appointed by Bill Clinton in 1997, Harvard Law 1974, Northern California practice and judgeship), hasn't yet finally ruled on the question or issued a stay -- which, unless the Supreme Court overturns the stay, would probably delay the execution months or even years -- but he did make it clear that he is likely to do so:

California must either scrap plans to execute Michael Angelo Morales next week or change the way it will put the condemned inmate to death, a federal judge ruled Tuesday.

U.S. District Judge Jeremy Fogel of San Jose, responding to a defense challenge that the state's method of carrying out lethal injection is cruel and unusual punishment, gave state authorities the option of defending their current procedure in a two-day court hearing.

The judge said official state logs "in at least six of 13 executions by lethal injection" raise "at least some doubt" whether inmates were rendered unconscious before being injected with chemicals that would cause "excruciating pain."

Note, this is the very same case where Morales' defense team (including Ken Starr) previously filed fraudulent affidavits from several jurors, claiming that they had changed their minds and now wanted Morales not to be executed. When the DA's office discovered that the affidavits were forged, the defense team had to withdraw them.

The evidence that induced such "doubt" that the condemned were unconscious is that they were still breathing before they were executed. Is Judge Fogel really suggesting that unconscious people don't breathe?

Here is the procedure for lethal injection:

If he stays Morales' execution, Fogel plans to conduct a full assessment of evidence in favor of and against the process that depends on the administration of 5 grams of sodium thiopental to induce unconsciousness, followed by 50 or 100 milligrams of the paralyzing agent pancuronium bromide and, finally, a similar dosage of potassium chloride to induce cardiac arrest.

It's the pancuronium bromide, the "paralyzing agent," that is supposed to stop the breathing; the sodium thiopental just induces "unconsciousness" -- and of course, unconscious people generally do, in fact, breathe (the medical term for not breathing is "respiratory arrest," not "unconsciousness"). But the entire stay of execution hinges on this point:

While "no direct evidence" showed anyone was conscious to feel pain, said Fogel, the logs noted "respirations" continuing at least until the start of the administration of pancuronium bromide in the six executions of Jaturun Siripongs, Manuel Babbitt, Darrell Keith Rich, Stephen Wayne Anderson, Stanley Tookie Williams and Clarence Ray Allen. Williams may still have been breathing when the administration of potassium chloride began.

In other words, the barbiturate that was administered beforehand, sodium thiopental, did not kill the condemned; they were still alive until they were actually executed. Therefore, concludes Judge Fogel, because they were still alive, they might have felt pain. And therefore, the execution might have been unconstitutional.

Now it's certainly possible that the judge held something different and not nearly so stupid; maybe the defense team claimed something about the respirations indicated some level of consciousness. But if so, not a single news story that I've read -- out of five -- has made any such distinction.

For example, the San Francisco Chronicle:

[Fogel] cited witness accounts, newly obtained by Morales' lawyers, that at least three executed inmates -- Stanley Tookie Williams, Darrell Rich and Stephen Anderson -- appeared to be breathing for longer than a minute after receiving a powerful sedative, the first of the three drugs. At the most recent execution, Jan. 13, Clarence Ray Allen was given a second dose of a heart-stopping chemical before he was pronounced dead.

Nor are they all copies of each other; they're not just reprints of AP. But in any event, if all of the Antique Media stories got it wrong -- we still have to work with that until somebody publishes a corrected version. Blogs are typically not primary news gatherers.

So at this point, the only evidence cited for the condemned being "conscious" is that they were "breathing," as if those two were synonyms. And feeling pain is evidently also synonymous with an unconstitutional execution, since that is the only issue that appears to have been raised.

Two previous cases came before this judge, and in both cases, he declined to delay the execution:

In his previous rulings, in the cases before the executions of Kevin Cooper and Donald Beardslee, Fogel was persuaded by a state medical expert's calculation that the sodium thiopental dose would produce unconsciousness within 60 seconds in "over 99.999999999999 percent of the population."

In other words, although the state conceded that a conscious inmate would feel "excruciating pain" from the pancuronium bromide and potassium chloride, the chance of consciousness was thought to be infinitesimal.

Among the differences in Morales' case, said Fogel, was additional expert opinion as well as evidence drawn by Morales' lawyers from the state's execution logs and presented in court.

The legal theory here is that it's constitutional to kill someone only if he experiences no pain while dying. This is to say, mere pain is enough to render an execution unconstitutional.

Would that include mental pain, the knowledge that he's about to die? Even if restricted to physical pain, how do you prove that a person didn't experience physical pain if he's dead in seconds and therefore unavailable to testify?

By the way, the Chronicle raises another point that I think is the real motivation behind these appeals:

Fogel noted that no judge has heard evidence on how California has carried out lethal injections since the state switched its execution method from cyanide gas in 1996. The state made the change after another federal judge found that the San Quentin gas chamber might be subjecting inmates to a slow and painful death.

That is, lethal injection was chosen as the only approved method of execution in California (and 36 other states) precisely because it was deemed less painful. And now a judge is about to suspend even that method here -- because it might still be painful.

I'll let the victim's brother, Brian Chalk, have the last word (from the News10 story) about this argument:

"Lethal injection is the most humane way to do it," Chalk said. "99.999 percent of the people that go through this are out before the second drug enters their vein. They don't feel anything."

"They get to go to sleep in a nice controlled, safe quiet environment," Chalk said. "That's a lot more than he gave my sister."

(In the continuation below, I discuss the two "options" that Judge Fogel offered the state, if it wants to try to continue with Morales' execution. Both options involve delays of months or years, unless the Supreme Court intervenes. Click below to see what I mean....)

Now, it's not as if Judge Fogel doesn't give California any options; he offers two for the state to proceed with the execution:

It can substitute a barbiturate or combination of barbiturates for the three-drug series used in previous executions. Or, it can station an experienced anesthesiologist in the execution chamber to verify that Morales is unconscious.

All right, let's examine these two options:

Substitute a "combination of barbiturates":

Since I'm quite sure that the state of California mandates the precise method of execution, this would require the state legislature to enact, and the governor to sign, a new law mandating a different method. This process itself would take a long time... especially since a majority of the state legislature's dominant Democratic caucus (and perhaps an outright majority of the state legislature) opposes capital punishment in all cases and by any means.

And in any event, the process could not even start until there was a lengthy period of investigation as to whether a "combination of barbiturates" would actually do the job consistently -- and "humanely." So we're clearly talking about a delay of years before any further executions could be conducted in California, with no guarantee the legislature would ever vote to change the procedure... especially since, by refusing to authorize any change, they could effectively annul capital punishment, regardless of what the citizens of the state demand.

And of course, even if they did change it, I'm sure Morales' legal defense team would simply claim the new method was also painful... and we'd start all over again.

Stationing an anesthesiologist to "verify" that Morales is unconscious

But that option, however, leads straight back to the Supreme Court:

If they opt to designate a monitor, Fogel would rule by Thursday night whether the person is qualified. Either side could appeal by week's end and push the case to the U.S. Supreme Court over the Presidents Day holiday weekend.

Of course, the state can also simply appeal Fogel's ruling, once he makes it -- which would also lead to the Supreme Court, which so far has ducked deciding the issue (in a Missouri case).

In other words, the options to Fogel has given California are to get the entire state to come up with a different method of execution (that would be subject to exactly the same arguments from the same attorneys, probably before the same judge), or else to appeal to the Supreme Court once Fogel makes his expected ruling. Which will also take time, unless the Court acts swiftly to vacate the presumed stay of execution.

Thus, however thin you slice the baloney, this is yet another ruling by a Clinton judge to overturn the will of the people by finding some "gotcha" point to declare executions unconstitutional.

Hatched by Dafydd on this day, February 15, 2006, at the time of 7:28 PM

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Listed below are links to weblogs that reference If I Should Ouch Before I Die:

» Michael Morales Dead Pool from Big Lizards
Well not really; I just wanted to make people jump up and say "what the heck?" But I am curious: gentle readers, Mr. Morales is scheduled to be executed on Tuesday the 21st, I believe, for the brutal rape and... [Read More]

Tracked on February 19, 2006 6:18 AM

» Doctors Overturn Death Penalty from Big Lizards
The execution of Michael Morales was postponed late Monday night when the two anesthesiologists -- forced into the execution process by the ruling of federal Judge Jeremy Fogel -- abruptly refused to take part in the procedure, citing ethical concerns.... [Read More]

Tracked on February 21, 2006 6:29 AM

» The Old Fogel Has Gotten His Wish from Big Lizards
The state of California has given up for now, admitting that under the bizarre new rules decreed by the judicial fiat of Judge Jeremy Fogel, they cannot execute Michael Morales, or indeed any other prisoner they have on death row.... [Read More]

Tracked on February 21, 2006 9:49 PM

» Three-Judge Monte from Big Lizards
Want a preview of what the Supreme Court would be like if a Democrat won the presidency in 2008? Check out this gang-mugging of Florida Assistant Deputy Attorney General Carolyn Snurkowski and U.S. Justice Department lawyer Kannon Shanmugam. The subjec... [Read More]

Tracked on April 26, 2006 5:13 PM

» The World Turned Rightside Up from Big Lizards
You will all recall -- as I'm certain you've memorized every Big Lizards post by now -- and if you haven't, how do you expect to pass? -- that we earlier blogged about the stunning instance of Clinton appointee Judge... [Read More]

Tracked on December 17, 2006 3:36 AM

Comments

The following hissed in response by: Consigliere

"a California federal judge has jumped on the bandwagon of banning lethal injection"

As you later point out, this is incorect. In addition, the State has agreed, at least for Morales, to put an anesthesiologist in the death chamber. It's unlikely that the judge will reject a medical doctor.

The state will reserve the right to challenge the ruling (which it should and will) after Morales is executed next week.

As I see it, it's a green light barring another attempt of Starr & Senior to delay this case. Their last attempted failed today when the Cal. Supreme Court denied their last writ of habeas corpus.

The above hissed in response by: Consigliere at February 15, 2006 7:46 PM

The following hissed in response by: Dafydd ab Hugh

Consigliere:

Jeremy Fogel is a federal judge; if he decides to put a stay on the execution -- for example, if Starr and Friends object to the anesthesiologist the state picks and they appeal -- there is nothing that the California Supreme Court can do about it.

Dafydd

The above hissed in response by: Dafydd ab Hugh at February 15, 2006 9:11 PM

The following hissed in response by: MTF

Thankfully, any stay he issues will be reviewable by the Supremes. Who covers the California circuit? Hopefully a justice who will give this argument the thirty seconds consideration it fully deserves.

The above hissed in response by: MTF at February 16, 2006 6:47 AM

The following hissed in response by: Consigliere

there is nothing that the California Supreme Court can do about it.

Dafydd,

You misunderstood. As of last Friday, Morales had three balls in the air.

Their filing of a Petition for Clemency (BTW, although a hearing hasn't been turned down, the deadline to set one up has passed.)

Their Federal lawsuit regarding lethal injection (they also filed one against the DA's office but it was thrown out almost immediately).

Their Writ of Habeas Corpus filed Friday (2/10/05) with the California Supreme Court (with attached forged declaration of a witness) and now rejected.

It's that last legal action I was referring to when I mention the California Supreme Court; otherwise I agree with you.

The above hissed in response by: Consigliere at February 16, 2006 9:22 AM

The following hissed in response by: krkrjak

Is this judge nuts or what???? I have more surgical zippers than trousers with zippers and I'm sure as hell glad that I continued to breathe after I was rendered unconscious prior to surgery, otherwise I would not be posting this comment. And oh BTW, I never felt any pain during any surgical procedure. Geeze, where do those morons come from????

The above hissed in response by: krkrjak at February 16, 2006 11:08 AM

The following hissed in response by: Consigliere

BTW, one step closer:

Clemency Denied

The above hissed in response by: Consigliere at February 17, 2006 5:13 PM

The following hissed in response by: cdquarles

Dafydd,

Anesthesia is not the easiest thing in the world to do. There have been cases of people being aware of their surroundings while in anesthesia to the point where they heard and remembered what the surgical staff members were saying in the operating room. Succinyl choline or pancuronium bromide paralysis is a frightening thing to an awake person, and anoxia is quite painful to someone who's still awake. True anoxia or cytochrome c oxidase poisoning do not immediately cause loss of conciousness. That only happens when glycolysis and oxidative phosphorylation both fail to supply enough energy to keep the cation pumps (Na/K ATPase, Ca/Mg ATPases) working that restore membrane polarity required for neural signalling. The cortex quits first simply because of its mass and limited reserves (first 4 or 5 min). The rest of the brain can keep going for another 10 to 15 min before it quits. The heart can go for another 10 to 20 min and now you're near the end of that 'golden hour'. At this point, only hypothermia can slow the lysosomal autolysis that marks irreversibility.

I once had to watch someone die from a cause that was not obvious from the usual kinds of observations. The person, otoh, knew it was going to be fatal and it was something not easy to see despite being in a hospital with the best 20th century medical technology right at hand.

Back to anesthesia, well, a CNA or MD anesthesiologist certainly would be able to titrate the versed (or similar barbiturate) to unconciousness, titrate the pancuronium bromide to maintain paralysis, and give sufficient KCl, morphine and insulin to be certain of a peaceful journey into the next life. Cyanide by itself (no versed or similar barbiturate and no pancuronium bromide or similar neuromuscular junction inhibitor) would not necessarily be a painless way to die, but it most likely would be painless since it will induce unconsciousness after about 5 minutes. Cyanide stops oxidative phosphorylation. It does not stop glycolysis. Death, once again, is never instantaneous. It takes at least one hour for irreversible cessation of metabolism to set in.

The above hissed in response by: cdquarles at February 19, 2006 1:45 AM

The following hissed in response by: Dafydd ab Hugh

CDQuarles:

Um, I think you're missing the point here: we are putting these people to death. On purpose. I really don't care if they get panicky or experience pain... we're not deliberately trying to do so; but on the other hand, I can live with their deaths being unpleasant.

In any event, you appear to be a doctor or medical technician: would you agree with me that the mere fact that the condemned is still breathing doesn't mean he's necessarily conscious?

Dafydd

The above hissed in response by: Dafydd ab Hugh at February 19, 2006 6:10 AM

The following hissed in response by: cdquarles

Dafydd,

I understand. I am a full proponent of the death penalty. I am saying that the grounds being proposed to call it cruel have a thin reed to stand on. I believe that if you have committed an act as vile as cold blooded murder, then you should suffer before you die simply because you did the same to your victim. Old sparky (aka Big Yellow Mama here), IMO, was not cruel and unusual punishment.

Sure, I agree. Terri Schiavo certainly would agree, if she were still available for comment :).

The above hissed in response by: cdquarles at February 20, 2006 12:55 AM