Judge halts Missouri executions

Tuesday, June 27, 2006

ST. LOUIS -- A federal judge on Monday halted executions in Missouri until the state Department of Corrections makes sweeping changes to its execution protocol.

In a 16-page opinion, U.S. Judge Fernando Gaitan Jr. said the state's lethal injection procedure subjects condemned inmates to an "unnecessary risk" of "unconstitutional pain and suffering."

Gaitan amended his earlier ruling in the case of condemned inmate Michael Taylor, of Kansas City, saying it was apparent Missouri's execution process has "numerous problems." He gave the Corrections Department until July 15 to come up with a new protocol, and said until he approved it, no executions could occur.

"For example, there is no written protocol which describes which drugs will be administered, in what amounts," Gaitan wrote in describing a litany of concerns.

Gaitan, who sits on the federal bench in Kansas City, also said he was concerned because the doctor in charge of mixing the drugs is dyslexic. Someone else administers the drugs.

"The court is gravely concerned that a physician who is solely responsible for correctly mixing the drugs which will be responsible for humanely ending the life of condemned inmates has a condition which causes him confusion with regard to numbers," Gaitan wrote.

The identity of the surgeon who mixes the three drugs used in Missouri executions has been closely guarded. His identity was not even revealed to Taylor's attorneys, who recently deposed him.

Missouri Corrections Director Larry Crawford testified in a hearing two weeks ago that he would clarify the state's execution protocol. He testified after learning the dyslexic surgeon had prepared a lower-than-expected dose of anesthesia for the last several inmates who were put to death.

"I should have been notified," Crawford said at the time. "I want to be consulted."

Crawford later told The Associated Press he planned to formalize the injection procedures and limit any doctor's discretion.

Gaitan's order is far more sweeping. He said a board-certified anesthesiologist must be responsible for mixing the three drugs used in Missouri executions, and must either administer the drugs intravenously or directly observe those who do.

Gaitan said the level of thiopental, the first of three drugs and which is supposed to render the inmate unconscious, cannot be less than 5 grams. The surgeon testified he had been administering 2.5 grams.

Gaitan said two subsequent drugs, aimed at paralyzing the inmate, then stopping his heart, shall not be given until the anesthesiologist determines the inmate has achieved "sufficient anesthetic depth." The third, heart-stopping drug, potassium chloride, causes excruciating pain, and Gaitan said he wanted to ensure the inmate would not feel "undue pain" with the final drug.

The judge also ordered the state to implement procedures to allow the anesthesiologist to "adequately monitor" the inmate's anesthetic depth. He said that could require the purchase of monitoring equipment, repositioning the gurney so the inmate's face is visible to the anesthesiologist, using a mirror or allowing the doctor to be present in the room when the drugs are administered.

Gaitan also ordered Missouri to come up with a contingency plan for any unforeseen problems, and to put in place an auditing process to ensure that those carrying out executions are correctly following protocol.

Gaitan said he would retain jurisdiction over the state's implementation of the protocol for the next six executions or until the court was satisfied it is being administered consistently.

It wasn't clear whether the state would appeal the decision.

Spokesman Scott Holste said until the attorney general's office had an opportunity to discuss the matter with the Corrections Department, his office would have no comment.

Crawford did not immediately return a phone call seeking comment.

Eric Berger, one of Taylor's attorneys, said by phone from Washington that on first reading, Taylor's legal team was "very encouraged by the order."

"We believe it's a significant step toward remedying some of the very serious defects in Missouri's lethal injection procedure. Obviously, this is the beginning of a process of change, but we believe this is a huge victory for Michael Taylor."

Gaitan's ruling is not binding anywhere but in Missouri, but it could be persuasive as other states struggle with the issue of whether the three drugs used in executions around the U.S. lead to cruel and unusual suffering.

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