Challenge to Missouri's execution method sent back to lower court

Friday, April 28, 2006

ST. LOUIS -- A condemned prisoner from Kansas City will get another chance to try to show Missouri's method of execution is unconstitutional.

A panel of the 8th Circuit U.S. Court of Appeals on Thursday ruled that lawyers for convicted killer Michael Taylor should be given a chance to offer the testimony of individuals who weren't available for a hastily convened hearing in January.

It remanded the case to U.S. District Judge Fernando Gaitan Jr. for additional testimony on the constitutionality of Missouri's lethal injection method.

Gaitan was under orders to hear the case and issue a decision just days before Taylor was to have been executed on Feb. 1. The appeals court panel on Thursday said it had made impossible demands on Gaitan and the parties.

"We conclude that we will be somewhat more comfortable as we consider and determine the merits of the case if the district court has had an opportunity to expand or supplement the record," the panel wrote. "We hereby offer our mea culpa. ... We simply asked the district court and the parties to do too much in too little time."

Taylor's lawyers are not seeking a reprieve of the death penalty for Taylor, who pleaded guilty to the 1989 kidnapping, rape and murder of 15-year-old Ann Harrison of Kansas City.

But they argue that a drug combination used to execute Missouri prisoners is unconstitutionally cruel punishment.

They say that the three-drug cocktail used in Missouri and around the country could result in a "horrible, excruciating death" if the anesthesia doesn't take effect or wears off.

Similar arguments are being made in death penalty cases around the country.

Critics of lethal injection have been bolstered by a 2005 study published in the Lancet medical journal indicating that a painkiller administered at the start of an execution can wear off before a prisoner dies.

The Supreme Court on Wednesday heard arguments in a Florida case that will determine whether inmates can file last-minute civil rights challenges claiming their deaths would be cruel and unusual punishment.

The justices clashed over how states execute killers, with one court member saying current lethal-injection drugs would not be used on cats and dogs and a second arguing that executions do not have to be pain-free.

In the Missouri case, Taylor's lawyers want to depose a doctor and nurse involved in Missouri executions. But the state has blocked it despite assurances their identity would be shielded.

The defense also wants to present witness Sri Melethil, an expert in the science of how drugs act in the body over time, to rebut the state's witness, Dr. Mark Dershwitz.

Dershwitz has testified that more than enough of the first drug -- the sedative sodium pentothal -- is given to a condemned prisoner before the second is administered.

Solicitor Jim Layton of the Missouri Attorney General's office has said the state wants to settle the lethal injection protocol question so it doesn't have to be litigated in every capital case.

Four other convicted killers on Missouri's Death Row claimed in a federal lawsuit last week that the state's method for putting inmates to death is unconstitutionally cruel. The four men could face death relatively soon.

In a report this week, Human Rights Watch, which opposes the death penalty, identified dozens of cases of botched executions by lethal injection in the U.S., including one from Missouri.

The case involved Emmit Foster, executed in May 1995, 30 minutes after the lethal chemicals were injected into his arm, and after a period of his gasping and convulsing. A coroner said Foster had been too tightly strapped to the gurney, restricting the flow of chemicals to his veins. He died after the strap was loosened.

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