Jan. 11
CALIFORNIA----impending execution
Calif. Judge Rejects Novel Appeal to Halt Execution
A federal judge Friday rejected a death row inmate's request to halt his
upcoming execution on grounds that a chemical used to paralyze condemned
prisoners during lethal injections could impair their free speech rights.
Barring a successful appeal, U.S. District Judge Jeremy Fogel's decision
means that convicted double murderer Donald Beardslee will be executed as
scheduled at San Quentin on Jan. 19.
Legal experts said Beardslee's appeal was the 1st argument of its kind in
death penalty law. But Fogel was unpersuaded, saying at a hearing Thursday
that Beardslee "hasn't shown a sufficient violation of his constitutional
rights." He took the case under submission and issued his ruling Friday
afternoon.
Beardslee argued in an application for a temporary restraining order to
halt his execution that pancuronium bromide, the 2nd of 3 chemicals
injected into condemned inmates at executions, could violate his First
Amendment rights by preventing him from telling witnesses that he was
uncomfortable or in pain.
But in a 7-page ruling, Fogel said he was unconvinced that there was any
chance that an inmate would be conscious when receiving the paralytic
drugs because doctors first administer a strong barbiturate, sodium
pentothal.
"Even with protocols under which only two grams of sodium pentothal -- as
opposed to the five grams used in California -- are to be administered,
the likelihood of such an error occurring 'is so remote as to be
nonexistent,'" Fogel said.
Senior Assistant Attorney General Dane Gillette had argued that Beardslee
must first prove an Eighth Amendment ban on cruel and unusual punishment
-- specifically, that an inmate is still conscious after sedatives are
injected -- before filing a First Amendment appeal.
"We're pleased, and we think this is the correct result," Gillette said of
Fogel's ruling.
Defense attorney Steven Lubliner of Petaluma plans to seek a review in the
9th U.S. Circuit Court of Appeals. He tried to convince the judge that the
state wanted to chemically mask the excruciating pain that condemned
prisoners endure during lethal injections.
"I'm surprised at the brevity of the order and its failure to engage in
any Ninth Circuit opinions or cases which make clear that development of
execution policies requires a vigorous protection of First Amendment
rights," Lubliner said Friday.
Beardslee was convicted of the drug-related slayings of 2 women in San
Mateo County 20 years ago.
The case is Beardslee v. Jeanne Woodford , CV 04-5381.
(source: The Recorder)
