Judge refuses to delay execution

ST. LOUIS -- A judge refused to delay a St. Louis man's execution for kicking and beating his wife to death, ruling that Timothy Johnston's lawyers had failed to prove that Missouri's system of lethal injection could take too long and cause too much pain.

Johnston's lawyers said they would appeal U.S. District Judge Charles Shaw's ruling, issued Friday, to the 8th Circuit Court of Appeals on Monday.

Johnston, 44, is scheduled to die early Wednesday morning for the 1989 killing of Nancy Johnston, 27.

His attorneys contend that the lethal injection protocol, which uses three drugs in succession, is flawed and creates the possibility that a condemned prisoner will not be rendered unconscious by the first drug before the second stops his breathing.

That, they said, would violate the constitutional prohibition against cruel and unusual punishment.

The third and final drug stops the heartbeat. Missouri has used the system 64 times since 1989, and lawyers for the state say the chance of unconstitutional cruelty is "nonexistent."

Shaw agreed, writing that Johnson's challenge "suggests only a possibility, rather than a probability. ... The ever-present possibility of human error or accident is insufficient to establish a constitutional violation."

Dr. Mark Dershwitz, a professor of anesthesiology at the University of Massachusetts, told Shaw that Missouri's procedure ensures that more than enough of the first drug is given to a condemned prisoner before the second is administered.

"I agree that if an awake person were given (the second and third drugs), it would be horrible," Dershwitz said under questioning by Johnston's attorneys.