Judge Rejects Dismissal Of Part Of Lethal Injection Trial

A federal judge in San Jose refused a state request Friday for dismissal of part of a lawsuit challenging California's lethal injection procedures for executions.

But U.S. District Judge Jeremy Fogel said he intends to resolve the lawsuit by two death row inmates "as expeditiously as possible." He scheduled a status conference on the case for Dec. 17.

Inmates Michael Morales and Albert Greenwood Brown, who both face death sentences for murders of teenage girls in the early 1980s, claim the state's three-drug execution procedure carries a risk of causing unconstitutional severe pain.

The state contends that any problems were corrected in a revised lethal injection protocol completed earlier this year.

State attorneys had asked Fogel to dismiss two out of three claims in the lawsuit. The first claim is that the revised protocol is unconstitutional "on its face," or under all circumstances. The second claim is a contention that there is a reasonable alternative to the current procedure.

The state did not seek early dismissal of a third claim that the procedure is unconstitutional when actually applied by corrections officials.

Fogel said in a 15-page ruling that lawyers for Morales and Brown had presented enough preliminary information to allow the two challenged claims to remain in the case along with the third claim. He wrote that the claims "cannot simply be dismissed as implausible."

The judge also said the inmates had presented an adequate minimum basis for arguing in later proceedings that a single-drug execution, using only the sedative sodium thiopental, might be a reasonable alternative.

The inmates contend the three-drug procedure could violate the constitutional ban on cruel and unusual punishment because if an inmate is not truly unconscious, the paralytic second drug may mask extreme pain caused by the heart-stopping third drug.

The lawsuit was originally filed in 2006 by Morales. Fogel ruled later that year that the procedure then in use had numerous flaws. In response, the state revised its protocol and built a new execution chamber at San Quentin State Prison.

Brown joined the lawsuit this year after receiving an execution date of Sept. 29, later delayed to Sept. 30.

His execution was blocked when the California Supreme Court ruled on Sept. 30 that appeals had not been completed in a separate state court lawsuit challenging the public review process for the new protocol.

The last execution in California took place in January 2006. Executions have been on hold since then because of federal and state court procedural challenges.