Challenge to Missouri's execution protocol now in appeals court

KANSAS CITY, Mo. -- The state's revised plan for putting inmates to death falls short of ensuring that executions are humane, a federal judge said Tuesday as the case moved to a higher court.

Missouri Attorney General Jay Nixon on Monday appealed the June 26 ruling by U.S. District Judge Fernando Gaitan Jr. that ordered broad changes in the way the state administers lethal injections.

In an order issued Tuesday, Gaitan said Nixon's filing with the 8th U.S. Circuit Court of Appeals means he no longer has jurisdiction over the case.

But he took the occasion to renew his earlier conclusion that "Missouri's current lethal injection procedure subjects condemned inmates to an unnecessary risk of unconstitutional pain and suffering."

"Without appropriate monitoring of the anesthesia, there is a strong argument that these executions might even be torturous," Gaitan wrote.

Gaitan had ordered in June that a board-certified anesthesiologist have a central role in the three-step lethal injections.

Unable to find a board-certified anesthesiologist willing to participate in an execution, the state proposed to use other medical personnel instead.

That proposal "is an improvement over the current procedure," Gaitan wrote Tuesday. "However, there continue to be inadequacies with the personnel required to monitor and oversee the use of the anesthetic thiopental."

The case was brought by Michael Taylor, who pleaded guilty and was sentenced to death for the 1989 kidnap, rape and murder of 15-year-old Ann Harrison, of Kansas City.

Taylor's attorneys argue the drug combination used to execute Missouri prisoners is unconstitutionally cruel punishment, since it could cause a "horrible, excruciating death" if the anesthesia doesn't take effect or wears off.

Gaitan's June ruling noted that the doctor in charge of mixing the drug combination -- a surgeon -- is dyslexic, sometimes mixed up numbers and worked under no written protocol.