Feb. 22 TEXAS: Death row inmate returns to Midland Facing much higher legal hurdles than in his recent direct pleas to the Texas Court of Criminal Appeals, convicted double murderer Clinton Lee Young is back in Midland for a hearing to try and overturn his April 2002 death sentence and win a new trial. Young, 22, was transported last week from the Texas Department of Criminal Justice's Polunsky Unit at Livingston in East Texas to a cell on the 4th floor of Midland County Courthouse. His hearing is scheduled for March 1-2 before 238th District Court Judge John Hyde, who presided at his capital murder trial. Sheriff's Lt. Monte Kay Cross Tuesday declined comment on the security measures being used to ensure Young does not escape, but said he gave deputies Dale Burns and Dean Soper no trouble. "Everything went smoothly and he was transported without incident," Cross said. Assistant District Attorney Ralph Petty, to be assisted at the hearing by First Assistant Teresa Clingman, said all potentially relevant issues were in play when the state appellate court overruled all 34 of Young's points of appeal Sept. 28. Now as the legality of his confinement is tested, only issues of constitutionality and due process will be debated, Petty said. Young's court-appointed lawyer, Ori White of Fort Stockton, said through a spokeswoman that he declines comment on all pre-trial matters. Hefting 3 thick books of documents and motions in the death penalty appeal, Petty said Young's contention that court-appointed Midland lawyers Ian Cantacuzene, Paul Williams and Rusty Wall were ineffective is ill-founded. "The case was fairly tried and the defendant had 3 excellent lawyers," Petty said. "When it's all over, either he will be granted a new trial or he will be executed." The assistant district attorney said White and Young will claim the defense lawyers did not make certain key objections and did not stop the admittance of damning evidence that they should have blocked, among other contentions. Petty said Cantacuzene "spent a considerable amount of his own money" on Young's defense. The attorneys on both sides will call a number of witnesses at the hearing, Petty said. Young was convicted of killing Samuel Petrey, 52, of Eastland and 41-year-old Doyle Douglas of Ore City by shooting each of them twice in the head with a stolen .22 caliber pistol. Petrey died on a Midland County oil lease and Douglas near Longview before Young and his accomplice, David Lee Page, were apprehended in November 2001. Page pleaded guilty, testified against Young and got a 30-year sentence. Petty explained that if Young's claims are rejected here, Hyde's ruling will be reviewed by the state criminal appeals court in Austin. If unsuccessful there, he will still have recourse to the 5th U.S. Circuit Court of Appeals in New Orleans and could then seek a writ to be heard by the U.S. Supreme Court. Petty said state death row inmates are being executed faster now that stricter appeal deadlines have been imposed by the Texas Legislature, although the same appellate avenues are available as they previously were. (source: MyWestTexas.com) ********************* Response to crime lab scandal criticized----Only 2 freed despite many faulty tests in Houston; some say convictions still solid A series of investigations of the Houston police crime lab has uncovered dozens of faulty tests, but the findings have freed just two wrongly convicted men in three years. Some say the legal system - including defense lawyers - has been slow to respond, and legislators and inmate advocates are looking for ways to make sure innocent people have not been sent to prison or, worse, the death chamber. "There needs to be some mechanism to giving those individuals the proper legal representation they deserve," said state Sen. Rodney Ellis, D-Houston, board chairman for the New York-based Innocence Project and a member of the Senate Criminal Justice Committee. Prosecutors say few convictions have been overturned because most of the errors were not major factors in convictions. But critics aren't so sure. Preliminary findings last month showed 40 % of DNA cases examined and 22.5 percent of blood-test cases scrutinized between 1987 and 2002 had major errors. And the inquiry keeps growing. Michael Bromwich, an independent investigator hired by the city in 2005, is extending his inquiry seven years further back, to 1980, casting doubt on hundreds more cases. The examination is unfolding even as other cases around the state and the country have been overturned for similar problems. Triggered by a 2002 KHOU-TV investigation that uncovered flaws in Houston Police Department DNA testing, the investigation has gone through several stages prosecutors and police combed through more than 400 DNA cases; two grand juries studied and criticized the police lab; and Mr. Bromwich sampled 2,700 cases of various types for examination. The findings have been shocking. According to Mr. Bromwich's reports, poorly trained lab workers faked or misinterpreted tests, withheld exculpatory findings and gave false testimony in court. Two convictions have been overturned. Josiah Sutton served more than four years in prison for rape before being freed in 2003 after a DNA retest contradicted earlier Houston lab work that helped convict him. And George Rodriguez served 17 years in prison for rape before being released in 2004 after DNA testing discredited lab work done in his case. Mr. Bromwich, a former Justice Department inspector general who investigated the FBI lab in the 1990s, told a legislative meeting recently that "the incidence of problems ... was so high...we decided to recalibrate." He also plans to dig deeper into individual convictions. Getting innocent people out of jail is not part of his mandate, but there's "disturbing anecdotal evidence about the lack of follow-through on some of our findings," he said, specifically citing defense lawyers. Challenges in system One problem, critics say, is the difficulty that inmates face getting and keeping attorneys and navigating the system, which provides limited funding for free legal work and imposes hurdles to control frivolous claims. It's also a fact that neither defense lawyers, often representing indigent defendants by taxpayer-funded court appointment, nor district attorneys, whose staffs tend to be lean, have the resources to review a large number of cases quickly. "There has to be focused, systematic attention brought to bear on these cases," said Barry Scheck, co-founder of the Innocence Project, which has done its own work in Houston cases. "This is the single worst forensic scandal in the history of American justice, and it's taking place in a jurisdiction [Harris County] that has executed more people than any state except Texas and Virginia." Harris County District Attorney Chuck Rosenthal expresses confidence that no innocent person has been executed and that most errors are "not a matter of someone making a decision to convict someone who was innocent." Most retesting has supported the original findings, his office has said. But he has promised thorough corrective action. "We have an obligation to make sure that no innocent person was convicted of anything and that no false information was given to a jury," he said. Others are fearful that a wrongful execution eventually will turn up. "I am bracing for it," said City Council member Adrian Garcia, a former police officer who chairs the council's public safety and homeland security committee. Mr. Scheck has offered the services of his growing network of Innocence Projects, staffed by law students at schools around the country, including several in Texas. Recent legislative action provides some state grant money to help fund the effort. Mr. Ellis has gone further, proposing a state Innocence Commission. His bill was gaining traction last legislative session but was shelved after Gov. Rick Perry proposed a Criminal Justice Advisory Council to make recommendations on the problem from both the prosecution and defense perspective. The Ellis proposal will be reintroduced next session, aides say. Mr. Ellis supports widening the investigation, getting the state bar and even federal authorities involved. "The more open and fair the process is in finding out the true extent of the problem, the more faith that the public will have," he said. Start of investigation The inquiry began when the Houston Police Department and Mr. Rosenthal identified for retesting more than 400 cases involving DNA from semen, blood or other tissue. The move came in response to reports by KHOU-TV, owned by Belo Corp., which also owns The Dallas Morning News. When results showed numerous errors, lab workers were disciplined or forced out. But two grand juries investigated without returning criminal indictments. Mr. Rosenthal has said the statute of limitations, which regulates how far in the past he can go, is a barrier to prosecution. After Mr. Bromwich was brought in for a broader look, the bad news grew worse. His team found problems mainly in DNA and the predecessor blood-typing technology, serology, but also in ballistics, controlled substances and toxicology. In a second phase of its inquiry, Mr. Bromwich's team is reviewing 2,700 individual cases sampled from the 130,000 that the lab handled between 1987 and 2002. A little less than halfway through, 27 of 67 DNA tests by the Houston Police Department and 18 of 80 serology, or blood-test, cases were found to have major flaws. Mr. Bromwich has decided on a 3rd phase. This will include detailed review of individual cases in which serology and DNA evidence contributed to guilty pleas or convictions. He also wants to review serology operations going back to 1980 instead of stopping in 1987. Price tag By the time it's over, officials estimate the lab mess could cost the city as much as $10 million. Of course, the ultimate cost depends on how long it takes to finish the inquiry and to resolve all the cases. Problems have been found at other labs around the country, but none as extensive as those uncovered in Houston. In fairness, Mr. Bromwich said there probably are big problems elsewhere. But at the moment, he said, Houston "may be alone in having the fortitude to explore them honestly and openly." Dallas' crime lab has had no similar investigation but hasn't had a comparable scandal either. In Fort Worth, after lab errors were discovered, a 2-year investigation determined that no long-term injustice resulted. Meanwhile, Irma Rios, a Department of Public Safety lab veteran hired to run the Houston lab in late 2003, soldiers on. She's working to fix the lab while continuing to oversee processing of thousands of cases a year. "We're moving quickly," she said, citing accreditation last year of most of the lab except the DNA section. The DNA section has been shut down - except for identifying samples to send to private labs - since 2002. She hopes to have it up and running again in a few months. But restoration of public confidence awaits proven performance and resolution of all the problems with old cases, she said. The steady drip of foul-ups hurts, she said. In one recent example, retest paperwork for a case was lost for 5 months. "It's going to take a long time," Ms. Rios said. (source: Houston Chronicle) *************** Retrial of 1980 Houston robbery-murder case goes to jury----2 sides question when man who got death in first trial lied The retrial of a much-reviewed Texas death-penalty case went to the jury Tuesday after defense lawyers argued that Max Soffar's confession to a horrific robbery-murder more than 20 years ago was a lie and prosecutors answered that his claim of innocence now is a lie. Jurors deliberated for several hours, then broke for the night and went back to their hotel. Deliberations were to resume today. The case was retried after the 5th U.S. Circuit Court of Appeals ruled that Mr. Soffar was ill-served by court-appointed lawyers in his 1st trial in 1981. He was convicted in a $1,000 robbery that left 3 youths shot to death and a fourth seriously wounded at the Fairlanes-Windfern Bowling Alley in northwest Houston in 1980. Mr. Soffar, 50, became a cause clbre among critics of the death penalty after he said that as a drug-addicted sometime police informant, he was manipulated by officers into confessing to a crime he did not commit. His case was taken up by volunteer lawyers in 1988 and went through a series of appeals before being overturned in 2004. In final arguments, defense lawyer Stanley Schneider told jurors that police investigating the case were stumped at first because physical evidence and other leads were scant. Then, Mr. Soffar was stopped on a stolen motorcycle in League City, south of Houston, and started trying to talk himself out of trouble because he was already on probation, Mr. Schneider said. Instead, Mr. Soffar, without a lawyer present, talked himself into a capital murder charge, and police looked no further, coaching him and ignoring inconsistencies in his statements, Mr. Schneider argued. "Mr. Soffar fell into their laps," the defense lawyer said. Assistant District Attorney Lyn McClellan ridiculed the defense theory of the case. Mr. Soffar's statements were consistent enough and matched the facts of the case well enough, Mr. McClellan argued. "Why would a person admit to shooting ... people and killing them during the course of a robbery if he wasn't even there?" he asked. As for defense contentions that no physical evidence linked Mr. Soffar to the crime, Mr. McClellan said it's not uncommon in crimes committed in public places. Defense lawyers were unable, during the two-week retrial, to tell jurors about two pieces of evidence uncovered in the last 20 years by Jim Schropp, a Washington, D.C., securities lawyer, whose firm handled Mr. Soffar's appeals for free. In one piece of evidence, for example, a Texas prison inmate implicated somebody else in the robbery-murder. That witness gave defense lawyers a statement but got cold feet and said he'd exercise his Fifth Amendment right not to testify, Mr. Schneider said outside the courtroom. Texas law doesn't allow lawyers to call a witness if they know he'll refuse to testify. The second piece of evidence was Mr. Soffar's tortured explanation - in a letter to one of his trial attorneys, Joe Cannon - detailing why he told a self-incriminating lie. Mr. Cannon, who is now deceased, became notorious as the sleeping lawyer in another overturned death-penalty case. In his letter, Mr. Soffar said he was angry at a friend and thought he could get him charged in the robbery-murder. The man was questioned but released. Mr. Soffar would have had to testify - and waive attorney-client privilege - to get the letter into evidence, and defense lawyers didn't want to do that. *********************** DNA: Suspect didn't father girl----FW: Evidence rocks trial in killings of pregnant woman and her son Stephen Barbee, charged with killing a pregnant woman and her 7-year-old son, was not the father of the woman's unborn child, DNA evidence shows. Stephen Barbee The bombshell evidence was introduced on the 1st day of testimony in the capital murder trial of Mr. Barbee, 38, who is accused of suffocating Lisa Underwood, 34, and her son, Jayden, a year ago last Sunday. If convicted, Mr. Barbee could be sentenced to death. Ms. Underwood's friend and business partner, Holly Pils, testified that Ms. Underwood had assumed that Mr. Barbee was the father, and she had asked Mr. Barbee to put her daughter on his insurance after she was born. The DNA tests determined that a man Ms. Underwood had dated during the 1st half of 2004 was the father of the unborn girl. Ms. Pils testified that Ms. Underwood dated Mr. Barbee in 2003 and then split with him. They started seeing each other again in July 2004, and at that time, Ms. Underwood was dating the other man. Ms. Pils described the other man as Ms. Underwood's serious boyfriend. In his opening statement, prosecutor Kevin Rousseau said Mr. Barbee muttered, "Oh God, what have I done?" after being questioned by police about the disappearance of Ms. Underwood and her son. Jayden and Lisa Underwood "You're going to see, you're going to hear some disturbing things," Mr. Rousseau said. "This is a bad case." He told jurors that during the trial, he will introduce evidence that Mr. Barbee confessed to police and his wife and led detectives to the bodies of the mother and son, who were buried in a shallow grave in southern Denton County. Mr. Rousseau said he will also introduce footage from a Denton County Sheriff's Department camera showing Mr. Barbee a quarter of a mile away from where Ms. Underwood's sport utility vehicle was abandoned. At the time, Mr. Barbee was wet from the waist down and covered in mud, the prosecutor said. The defense will present its opening statements after the prosecution rests its case. The trial is expected to last about a week. In other testimony Tuesday, the first police officer to answer a call at Ms. Underwood's home after friends reported she didn't show up for her baby shower testified that she found a large bloodstain in the woman's living room and declared the home a crime scene. Dr. Marc Krouse of the Tarrant County medical examiner's office testified that Ms. Underwood's fetus was healthy and well-developed and showed no signs of problems. If she had been born premature that day, she would have been viable, he said. "Everything that was required to keep this baby alive was there," he said. Defense attorney Bill Ray questioned whether Ms. Underwood's suffocation could have been an accident. Dr. Krouse said that Ms. Underwood's injuries were consistent with someone pinning her to the ground, either by sitting on her back or putting a knee on her back while she was on her stomach. He estimated it would take two to 3 minutes of such force to suffocate someone, even though Ms. Underwood would probably have lost consciousness after a few seconds of such pressure. (source for both: Dallas Morning News) USA: Top court rejects new alibi evidence at sentencing Convicted murderers facing the death penalty do not have a constitutional right at sentencing to offer new evidence seeking to cast doubt on their guilt, the Supreme Court ruled unanimously on Wednesday. The justices said the Oregon Supreme Court had been wrong to rule that a defendant has a constitutional right try to avert a death sentence by presenting new alibi evidence during a sentencing hearing. Justice Stephen Brier said in the opinion that the Constitution does not give a capital-case defendant any such right, and a state can limit innocence-related evidence at sentencing to only that introduced at the original trial. The case involved Randy Lee Gauze, who was convicted on 2 counts of murder in the 1987 robbery and killing of a couple at their home in rural Oregon. He was sentenced to death. The Supreme Court's decision means Gauze's case will go back to the Oregon courts for further proceedings, and he can still face the death sentence. The Oregon Supreme Court had overturned the death sentence and sent the case back for a new sentencing. It said alibi evidence from Gauze's mother, that he was not at the crime scene, was admissible at the penalty phase of the trial. The state court ruled that the constitutional protection against cruel and unusual punishment required that a defendant be allowed to present at sentencing any evidence that mitigated against imposition of the death penalty. Brier said the evidence that Gauze wants to present was inconsistent with his prior conviction and was available at the time of his original trial. The evidence sheds no light on the manner in which Gauze committed the crime and sentencing traditionally concerns how, not whether, a defendant has committed the crime, Brier said. He said the parties previously litigated the issue of whether Gauze committed the crime, and the law generally bars that issue from being litigated again at sentencing. While Gauze cannot call his mother to testify at sentencing about the alibi, Brier said Oregon law gives Gauze the right to present to the sentencing jury all the evidence of innocence from the original trial, including transcripts of the mother's testimony that she was with him the night of the crime. (source: Reuters) CALIFORNIA: California Death Penalty Melt-Down The Nation It's getting rather macabre up in San Quentin's death chamber. For 2 nights in a row convicted killer Michael Morales was scheduled to die by lethal injection. 2 times he didn't. His Monday night date with death was postponed at the last moment when two anesthesiologists walked out, stating ethical concerns. They could not in good conscience, they said, carry out their task of monitoring the execution because they didn't trust the integrity of the lethal dosage system. They feared that Morales might not die quickly and painlessly and that it would fall upon them to re-awaken the prisoner and prepare him for a second jolt. After Monday night's snafu, Morales was re-scheduled to be killed late Tuesday night. California state officials then proposed he be executed with a massive dose of just sodium pentathol, a drug that causes death in 30 to 45 minutes instead of the usual 11 minutes it takes when a three-chemical load is used. Matters got further complicated when, two hours before Tuesday's execution, a Federal judge imposed new conditions to ward off a botched and painful procedure. He ordered that a licensed medical professional would have to directly inject the barbiturate into Morales' vein. But then the state attorney general's office halted the whole grim show when it said that this was not a recognized medical procedure and no medical professional would be ordered to comply. Bottom line: Morales' execution has been put off at least until May when a 2-day court hearing is scheduled. What a moment this would be for a vigorous anti-death penalty movement to surge upward in California. But this is an election year and political courage is running as short as compassion. (source: The Nation) ******************** STATE POSTPONES MORALES EXECUTION -- Doctors' ethical dilemma: 'This is a job for an executioner, not a physician' A decision by two California anesthesiologists to participate in the execution of Michael Morales -- and then to abruptly withdraw -- underscores the fierce opposition to physicians getting involved in capital punishment led by medical groups that consider such a role for doctors unethical. The American Medical Association, the California Medical Association, the American Society of Anesthesiologists and its California affiliate have long declared their opposition to the participation of doctors in executions, but their ethical pronouncements carry no legal authority in the state. Although the Medical Board of California may weigh ethical issues during proceedings to revoke the licenses of physicians, it has no authority to sanction doctors except for violations of law. "We do not enforce ethics," said Medical Board spokeswoman Candace Cohen. With the fate of Morales still in the balance Tuesday afternoon, the California Medical Association said it would sponsor a bill in the state Legislature that would make it illegal for doctors to play any role in executions. Under the bill, a doctor would not even be able to pronounce the prisoner dead. "We believe physician involvement in capital punishment at any level is unethical behavior," said Dr. Michael Sexton, an emergency physician in Marin County and president of the California Medical Association, the state's largest organization of doctors. Sexton said the apparent decision by two anesthesiologists to attend Morales' scheduled execution at midnight Tuesday shocked many doctors in the organization. "This is a job for an executioner, not a physician. I am glad that at the end of the day, they chose not to be involved." The bill, to be introduced by Dr. Alan Nakanishi, a Republican assemblyman from Lodi, and Assemblyman Ted Lieu, D-Torrance, would forbid the Department of Corrections and Rehabilitation from using a physician or a surgeon "to assist or otherwise participate" in an execution. It contains a list of prohibited forms of participation that is drawn from the AMA's own ethics guidelines against doctor roles in executions. They include prescribing, administering or supervising the use of any drug during an execution; monitoring the condemned inmate for vital signs; and determining the moment of death. The California doctors' group has advocated unsuccessfully for similar legislation in the past, although it did back a bill in 2001 by state Sen. John Burton, D-San Francisco, that was signed into law, barring the Department of Corrections and Rehabilitation from forcing its own staff physicians to participate in executions. Dr. Priscilla Ray, a Houston psychiatrist who is chairwoman of the AMA's Council on Ethical and Judicial Affairs, said the organization's opposition to physician participation in capital punishment was codified in 1980 and updated several times during the 1990s. Ray said that only a handful of states give its ethical guidelines the force of law, and California is not one of them. The AMA can sanction its own members for participating in executions -- including expelling them from membership -- but the reasons for such a revocation are not made public. The 2 unidentified anesthesiologists involved in the Morales case issued a statement after withdrawing from the impending execution, indicating that they had not initially envisioned playing a role in the administration of the lethal drugs the state uses to put inmates to death. However, after examining a Feb. 20 opinion of the Ninth Circuit Court of Appeals, it became clear to them that they might be called on to intervene "if any evidence of either pain or a return to consciousness arose." In other words, if for some reason Morales did not die as expected, they would be called on to order more drugs. "Any such intervention would clearly be medically unethical," they wrote in their statement. "We contemplated a positive role that might enable us to verify a humane execution ..." they said. "What is being asked of us now is ethically unacceptable." Physician opponents of capital punishment were pleased with the turnabout, but remained puzzled that doctors would have come so close to participating in Morales' execution. "It was obvious to me that they shouldn't have been there in the first place," said Dr. Jonathan Groner, a Columbus, Ohio, pediatrician who is active in anti-death penalty causes. University of Pennsylvania medical ethicist Arthur Caplan said that, even though medical ethics codes seldom are backed with the force of law, they retain a powerful influence on physicians. "The moral force is powerful. It puts you on the wrong side of your colleagues, and doctors don't like that," he said. Dr. Corey Weinstein, a San Francisco consultant for California Prison Focus, said the ethical quandary brought to light by the wavering anesthesiologists highlights fundamental problems with efforts to make the death penalty more humane. "Maybe it is because there is not a way to be humane and do this act," he said. Dr. Lawrence Sullivan, a director of the California Society of Anesthesiologists, said he did not know the names of the 2 doctors involved in the case. "It is conceivable that they thought this was a legitimate thing to do -- to assist in the humane termination of a human life." But Sullivan said, "as the subject became more public, and it was discussed publicly and privately, they may have become aware of the ethical issues." Sullivan said that he personally opposes capital punishment, which he sees as a "futile exercise." "For us, as physicians," he added, "we take an oath to preserve life wherever possible. It is a real contradiction for a physician to participate in an execution. It's an immensely wrong thing for a physician to do." (source: Sabin Russell, San Francisco Chronicle Medical Writer) *************** Doctors Wary of Crossing Line----Most physician groups believe participation violates the ethical rule of 'do no harm.' Some experts say their presence is unnecessary. The 11th-hour refusal by 2 anesthesiologists to participate in the planned execution of convicted killer Michael Morales underscored the ethical concerns of many physicians, who are bound by the rules of their profession to "do no harm." "Physicians are healers, not executioners," said the American Society of Anesthesiologists, in a statement typical of those issued by other physician groups. "The doctor-patient relationship depends upon the inviolate principle that a doctor uses his or her medical expertise only for the benefit of patients." Originally, the 2 unidentified private anesthesiologists agreed to monitor Morales' consciousness as he was being executed to ensure that he could not feel pain. They had volunteered to comply with an order by U.S. District Court Judge Jeremy Fogel in response to claims by Morales' attorneys that lethal injection violated a constitutional ban on cruel and unusual punishment. Fogel offered 3 options for the execution: giving a lethal injection of barbiturates only (which is not believed to cause pain); a stay of the execution pending a hearing; or having an anesthesiologist on hand to ensure Morales was unconscious when a 3-chemical injection was administered. State corrections officials chose the 3-chemical option involving anesthesiologists - 1 primary and 1 backup. In past executions, if a physician has been on hand, it has been outside the death chamber and strictly to confirm that death has occurred, or, in rare cases, to help access a vein, according to the Death Penalty Information Center based in Washington, D.C. The 2 anesthesiologists who were to attend the Morales execution apparently objected to intervening if Morales appeared to regain consciousness or displayed signs of pain. The court had specified that the anesthesiologists would in that case have to step in to render the inmate unconscious or "otherwise alleviate the painful effects" of the drugs. "I don't know of any other case where a physician has sat through and ordered an increased drip or whatever," said Richard Dieter, director of the nonprofit, nonpartisan center. "That seems to be a participation in the execution." "Any such intervention would clearly be medically unethical," the anesthesiologists said in a written statement Tuesday. "As a result, we have withdrawn from participation in this current process." The California Medical Assn., which represents about 30,000 physicians in California, strongly opposes such participation as well, saying Tuesday that it was sponsoring legislation that would outlaw physician assistance in executions. Illinois has such a law, and Georgia has considered one. Dieter said that concerns about possible pain and suffering involved in the lethal injections were raised recently, in an April 2005 article in the British medical journal Lancet. The article reported that in 43 of 49 executions, the anesthetic administered during lethal injections was lower than that required for surgery. In nearly 1/2 of the inmates from Arizona, Georgia, North Carolina and South Carolina, post-mortem concentrations of the anesthetic sodium thiopental in the blood were low enough that the prisoners might have been conscious during the execution and in severe pain. The Lancet article led some courts to temporarily halt planned executions by lethal injection, Dieter said. That is the method most states now use. Of the 1,012 executions in the U.S. since 1976, 844 have been done using lethal injections of the 3-drug cocktail. The inmate first is injected with sodium thiopental, which induces sleep. Next flows Pavulon (also called pancuronium bromide), which paralyzes the entire muscle system and stops the inmate's breathing. Finally, the flow of potassium chloride stops the heart. Death results from anesthetic overdose and respiratory and cardiac arrest while the condemned person is unconscious. Some experts said Tuesday that the presence of anesthesiologists should not have been necessary. Dr. William J. Loskota, an anesthesiologist and assistant professor at USC's Keck School of Medicine, said the state should be using medical brain-monitoring devices to evaluate the consciousness of prisoners being executed, which perform the function the court had asked the anesthesiologists to do. Any participation by an anesthesiologist is unethical in an execution, Loskota said. "The role of an anesthesiologist is the last bastion on the abyss of death. Our whole job is life support and inherently directed toward saving the person and making him better." But Loskota questioned the Lancet article's findings. He said that blood levels wouldn't reflect the true levels of the anesthetic in the brain. For a true measure, brain tissue samples would have to be taken at the time of death. After the anesthesiologists withdrew, a ruling Tuesday afternoon by Judge Fogel said the state could execute the plaintiff using 5 grams of sodium thiopental or another barbiturate or combination of barbiturates, as long as the dose was properly administered "by a person or persons licensed by the state of California to inject medications intravenously," such as a nurse or other medical professional. The ruling said that "Defendants agreed to have one of the anesthesiologists in the execution chamber" but did not clarify the anesthesiologist's role. Using just the 1 drug is unprecedented, Dieter said. "It is used to put someone to sleep, not to kill," he said. "So it's a change in its purpose. Any drug in sufficient quantities will kill you, but whether it's the better than the 3 is unknown. So it's sort of like an experiment - 'Let's try this approach.'" The state called off the procedure, however, saying it did not have time to prepare for it. (source: Los Angeles Times) ******************** MEDICAL WORLD BALKS AT ASSISTING EXECUTIONS For decades, medical ethicists and associations have been saying that doctors should heal, not kill. On Tuesday, those concerns collided with the case of Michael Morales and effectively blocked his execution. The unexpected turn of events placed new focus on difficult questions surrounding the death penalty. Is there a humane way to carry out an execution? And how can officials assure an execution does not violate constitutional prohibitions against "cruel and unusual punishment" -- especially if doctors refuse to participate? David Magnus, director of Stanford University's Center for Biomedical Ethics, said the situation poses a dilemma. "The state has an obligation for the execution to be painless" and humane, he said. "On the other hand, it's a violation of pretty core ethical principles to have physicians euthanize patients against their will." Doctors played an unusually prominent role in the Morales case because his lawyers argued that California's traditional three-drug lethal injection was cruel and unusual punishment. The initial sedative, they contended, might not make him unconscious before the other 2 drugs are administered. Concerned by the suggestions, U.S. District Judge Jeremy Fogel gave the state 2 options: Hire anesthesiologists to make sure Morales was unconscious, or execute him using the initial drug alone. The 1st option collapsed late Monday night when the anesthesiologists backed out, citing ethical concerns. The second broke down Tuesday evening when the state said it could not find a licensed medical professional to give the lethal injection. Previously, prison employees have inserted the intravenous lines, and then the drugs were added by a machine. Even before the execution was postponed Tuesday evening, the California Medical Association announced it is sponsoring a bill that would prohibit physician involvement in future executions here. On Friday, the state of Georgia went the other way, approving a bill to protect physicians who help administer capital punishment. It already is a violation of the American Medical Association Code of Ethics for a doctor to participate in an execution, said Dr. Priscilla Ray, a Houston psychiatrist who is chair of the AMA's Council on Ethical and Judicial Affairs. And while the council has not investigated a doctor in Georgia who announced that he had a contract with the state to monitor executions, ``the AMA president can appoint an investigator to look into that and bring it to us," she said. The chain of events surrounding the postponement of Morales' execution is just another blip in the long history of doctors and executions, one bioethicist said. During the French Revolution, it was a doctor who proposed the guillotine as a humane method of death for that time, said Dr. Stephen Miles, who teaches at the Center for Bioethics at the University of Minnesota. "Rich people were being painlessly and swiftly beheaded after slipping money to the executioner to sharpen the blade," he said. "Poor people were being drawn and quartered on the wheel and burned." That's when Dr. Joseph-Ignace Guillotin said "everybody should be executed by decapitation," Miles said. "Another French doctor actually invented the French guillotine." Doctors surfaced at the heart of the execution debate in the United States, he said, "when docs weighed in about new technology called electricity. A committee of doctors developed the technology for the electric chair." The next major development with doctors happened during World War II, "when people were totally disgusted with what Nazi medicine had done," he said. "Then you had the Geneva Convention and the anti-torture movement, which essentially tried to get doctors out of the business of state punishments." (source: San Jose Mercury News) ******************* Execution ethics Q&A STATE BY STATE Executions are carried out in different ways in the United States. Many states offer more than 1 option. Injection - Federal government, U.S. military. 37 states: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming. Electrocution 10 states: Alabama, Arkansas, Florida, Illinois, Kentucky, Nebraska, Oklahoma, South Carolina, Tennessee, Virginia Gas chamber 5 states (all offer injection as an alternative): Arizona, California, Maryland, Missouri, Wyoming Hanging 2 states: New Hampshire, Washington Firing squad 2 states: Idaho, Oklahoma [source: The Death Penalty Information Center] Tuesday's postponement of the execution of rapist and killer Michael Morales has renewed questions about medical ethics and what constitutes cruel and unusual punishment for the condemned. Q. What's this all about? In short, pain. Though U.S. District Judge Jeremy Fogel didn't question the legality of lethal injections, or address the bigger issue of whether execution is or isn't constitutional, he did come up with new ways last week to reduce the risk of a condemned person being subjected to "extreme pain" from a lethal injection. Pain, in itself, isn't a reason not to execute someone in California. But Fogel's ruling suggests that "excessive" pain might violate the ban on cruel and unusual punishment. For years, the state has been using three drugs for lethal injection: a sedative to induce unconsciousness, a drug to induce paralysis and a final chemical to still the heart. Fogel ruled that there might be doubt about whether the 1st of those 3 drugs really renders a person unconscious. Q.Does this change the death penalty in California? No. Fogel's ruling was narrow. He examined whether lethal injection might cause Morales to suffer excessive pain when executed. Fogel said he hoped the new guidelines would compel the state to clear up what he called inconsistencies in its execution logs, and he urged the state to thoroughly review its method of lethal injection. The decision Tuesday by the state to indefinitely postpone Morales' execution does not make the state's death penalty unconstitutional, legal experts said. "We still have a death penalty; we just haven't figured out a way to constitutionally implement it," said Laurie Levenson, associate dean at Loyola Law School in Los Angeles. "Somehow we have to perfect the machinery of death." Q. What did the judge order? That Morales be executed with an overdose of a single barbiturate, or that anesthesiologists be present to assist if Morales woke up or appeared to be in pain. After 2 anesthesiologists backed out, citing ethical reasons, the state decided to execute Morales with a single barbiturate. Then, late Tuesday, the state decided to postpone the execution until the matter can be heard again in court. Q. Why did the anesthesiologists back out? Because their participation would undermine a basic ethical foundation of the medical profession: First, do no harm. Even rendering technical advice regarding an execution violates the American Medical Association's code of ethics. The AMA joined the American Society of Anesthesiologists and the California Medical Association, among others, in speaking out against Fogel's decision. "Requiring physicians to be involved in executions violates their oath to protect lives and erodes public confidence in the medical profession," Dr. Priscilla Ray, chairwoman of the AMA Council on Ethical and Judicial Affairs, said in a statement. Q. What are medical ethicists saying? That a doctor is ethically bound to do what's in a patient's interest. "From a medical point of view, you'd be asking to treat someone against their wishes," said Dr. David Magnus, director of the Stanford Center for Biomedical Ethics. "Regardless of what one thinks about capital punishment, a person in prison has the right for an execution to be done painlessly and effectively. At the same time, you can't force physicians to participate in an execution." Q. What evidence did the judge cite that Morales might suffer pain? There is no direct evidence, the judge determined. But after reviewing death-row records and testimony by a doctor, Fogel said that at least 6 of the 13 inmates executed by lethal injection in California showed signs that their breathing may not have stopped when expected: a minute after receiving the first drug, sodium thiopental. Fogel cited some examples from execution logs: Jaturun Siriopongs, executed Feb. 9, 1999. Breathing did not stop until 4 minutes after he got the 1st drug. Darrel Keith Rich, executed March 15, 2000. Chest movements were observed 3 to 4 minutes after sodium thiopental was administered. Stanley Tookie Williams, executed Dec. 13, 2005. Williams did not stop breathing until 6 or 12 minutes after he got the 1st drug. "Evidence from eyewitnesses tending to show that many inmates continue to breathe long after they should have ceased to do so cannot simply be disregarded on its face," Fogel said in his ruling. Q. Just what is a "cruel and unusual" execution? That concept is constantly evolving, and the Morales case is the latest example, legal experts say. "We've killed people by firing squad, gas chambers and electric chairs," law professor Levenson said. "Certainly, (executions) have gotten more humane, but I don't know if it'll ever be humane enough for the opponents of the death penalty to say that it satisfies the constitutional requirement. "The bottom line is, we don't have a perfect way of killing someone." Q. Is there a "humane" way to execute someone? Not according to Lance Lindsey, executive director of Death Penalty Focus, which argues against capital punishment. "The notion that it's possible to ritualistically and with premeditation put someone down is reprehensible," Lindsey said. "What's happening with Morales amounts to an impromptu medical experiment on a prisoner. "This protocol (of execution) has not been tested - there has been no analysis whether it will work. But the state is willing to experiment. And I don't think this comports well to American standards of decency." Survivors of those who have lost a loved one to murder may disagree. "We put dogs down, and to me, that's humane," said Claudine Sanchez, whose son, Stephen, was murdered in 2000. The killer was sentence to life. "So is this: humane," said Sanchez, of La Habra. "Unlike the electric chair, (Morales) is just going to sleep. It's a much better way to die than the way his victim died." (source: Orange County Register) ************ Death penalty a possibility in deputy's slaying Prosecutors in Stanislaus County may be seeking the death penalty in a case against a Stockton man accused of murdering a California Highway Patrol officer Friday. Columbus Jr. Allen II, 30, of Stockton was booked by Stanislaus County sheriff's deputies on murder charges and is being held on a no-bail warrant, police said. He is scheduled to appear in Stanislaus County Superior Court, 800 11th St., Modesto, at 1:30 p.m. today in Department 7. Carol Shipley, Stanislaus County assistant district attorney, said authorities were meeting with investigators to discuss the case before filing a complaint against Allen - expected sometime late this morning and have already assigned an attorney. "We still haven't filled the 2nd chair. We always have a 2nd chair in capital punishment cases," Shipley said. When asked if her office was going to seek the death penalty, Shipley said they would prosecute what the evidence proves. According to documents obtained from San Joaquin County Superior Court, Allen was placed on probation in February 2003 following a plea to reckless driving and driving under the influence. In 1995, he was booked on suspicion of battery of a police officer and spousal abuse in Stockton, but the case was never pursued by the San Joaquin County District Attorney's Office, a court spokeswoman said. Meanwhile, funeral services for Officer Earl Scott, 36, of Hughson, were scheduled to begin with a procession at 12:30 p.m. Thursday from the west campus of Modesto Junior College to the First Baptist Church, 1326 12th St., where services are scheduled to start at 2 p.m. Community members who plan to attend the services are encouraged to carpool and access the church parking lots from the south. Additional parking is available at the downtown parking garages on 11th Street and Ninth Street. Burial services will be private. Scott was pronounced dead from a single gunshot wound to the head early Friday morning on the shoulder of State Route 99. He was found still clutching the vehicle registration card of the suspect car, police said. Sheriff's investigators said there are no other suspects. Authorities think Scott may have pulled over a dark colored 1990 Nissan for speeding after the radar gun in his marked Camaro police car indicated a vehicle moving at 84 mph around 4:43 a.m. Friday. Someone inside the car pulled out a gun and shot Scott - who was wearing a bullet proof vest - once in the head before tearing off northbound on Highway 99. Police said a witness passing the scene reported hearing a pop and seeing an officer fall to the ground as he drove past. The witness, whose identity wasn't released, returned to the shooting scene and found the mortally wounded officer. Scott was pronounced dead at the scene emergency medical personnel. (source: Oroville Mercury-Register) ARIZONA Killer gets 3 life sentences in triple slayings Still protesting his innocence, a former death row inmate was told yesterday he would never be released from prison for a 1992 triple slaying. Pima County Superior Court Judge Clark W. Munger sentenced Martin Raul Soto-Fong, 31, to three consecutive life sentences for the shooting deaths of Fred Gee, 45; Huang Ze Wan, 77; and Raymond Arriola, 32. They were killed at the now-defunct El Grande market, 805 W. 36th St. Soto-Fong would have to wait 75 years, or 25 years for each slaying, before being eligible for parole. "I had no part in the deaths of those people," Soto-Fong told Munger before sentencing. Soto-Fong said he recalled that former Pima County Deputy Attorney Kenneth Peasley was disbarred for presenting false testimony from former Tucson police detective Joseph Godoy in trials of his 2 co-defendants, Andre Minnitt and Christopher McCrimmon. The Arizona Supreme Court overturned Minnitt's conviction and dismissed the charges because of Peasley's actions. McCrimmon was acquitted. A state's witness has come forward and said Godoy coerced statements in Soto-Fong's trial as well, Soto-Fong said. In addition, one of the original defense attorneys, Rick Lougee, said he has information that clears Soto-Fong, but won't share the evidence with local prosecutors because he doesn't trust the Pima County Attorney's Office to properly investigate. Lougee said he would share the information with an outside agency. "I find it difficult understanding why I'm still standing before the court today," Soto-Fong said. "I can't say I totally understand how the legal system works, but I remain hopeful that the high court will reverse this case." Soto-Fong's death sentences were overturned after the U.S. Supreme Court ruled that juvenile killers cannot be executed. Soto-Fong, who says he is innocent, was 17 when the murders occurred. Had Soto-Fong been 4 months older, his resentencing would not have occurred, Deputy County Attorney Rick Unklesbay said. (source: Tucson Citizen)
