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Tuesday, October 30, 2007 (SF Chronicle)
Judge throws out state's new lethal injection procedures
Bob Egelko, Chronicle Staff Writer


(10-30) 16:34 PDT SAN RAFAEL - California's new procedures for lethal
injections are invalid because they were never submitted to the public for
comment or reviewed by the office that approves all state regulations, a
Marin County judge said today in a tentative ruling that could prolong the
state's moratorium on executions.

Superior Court Judge Lynn O'Malley Taylor agreed with lawyers for two
condemned prisoners that the state Department of Corrections and
Rehabilitation was enacting a regulation when it announced new procedures
in May for lethal injections at San Quentin State Prison.

Under state law, an agency that adopts a new regulation must first publish
the text, invite public comments, hold a hearing if a member of the public
requests one, and submit the final draft to the Office of Administrative
Law, which decides whether the proposed rule was legally authorized.

The Corrections Department has never gone through that process with new
execution procedures, saying they are not regulations because they apply
only to a limited group of inmates at a single prison. Taylor disagreed.
"The undisputed evidence establishes that (the execution protocol) is a
rule or regulation of general application," said Taylor, a retired judge
sitting by special assignment in the court. The protocol, she said,
"implements a statewide policy on lethal injections for condemned
inmates," prescribes duties for state officials outside San Quentin and
applies to prisoners at other institutions.

The 667 condemned inmates in California include 15 women at the Central
California Women's Facility in Chowchilla (Madera County) who, if their
appeals fail, will be executed at San Quentin. Some of the male inmates
are being held in medical institutions or, in the case of one of the Marin
County plaintiffs, a prison in another state where he has also been
sentenced to death.

The state will contest Taylor's preliminary decision at a hearing
Wednesday in San Rafael.

Taylor said the new procedures cannot be legally implemented until they go
through the regulatory process, including public input. Her ruling, if it
stands, poses a new obstacle to California's beleaguered capital
punishment system.

No one has been executed in California since January 2006. The following
month, U.S. District Judge Jeremy Fogel blocked the execution of Michael
Morales of Stockton, convicted of raping and murdering 17-year-old Terri
Winchell in a vineyard near Lodi in 1981.

Fogel said records of past executions convinced him there was a risk that
a sedation drug would not work and that Morales would be conscious,
paralyzed and in agony while dying.

After hearing testimony from medical experts and execution witnesses,
Fogel issued another ruling last December saying he would find that
California's lethal injections - carried out by a poorly trained and
supervised prison staff, in dimly lit and chaotic conditions - violated
the constitutional ban on cruel and unusual punishment unless the state
overhauled the execution process.

The state responded by changing the drug doses, promising improvements in
staff selection and training and building a new execution chamber, which
Fogel is scheduled to visit in advance of a hearing Dec. 10-11 in his San
Jose court.

Meanwhile, the U.S. Supreme Court is preparing to review a similar case
from Kentucky that could lead to changes in execution methods in virtually
every state with a death penalty law, including California.

The Marin County suit was filed in April 2006 by Morales, now 48, and
Mitchell Sims, 47, who has been sentenced to death in California and South
Carolina for murdering employees of Domino's Pizza in both states. He once
worked at the pizza chain.

Both men have unsuccessfully appealed their convictions and death
sentences.

E-mail Bob Egelko at begelko@sfchronicle.com. ----------------------------------------------------------------------
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