U.S. District Judge Jeremy Fogel tried to find a commonsense way of addressing defense lawyers' arguments that convicted rapist-murderer Michael Morales might feel pain during his execution -- scheduled for Feb. 21, but now postponed. He tried to do the right thing, and for that Fogel got snookered.
Californians got snookered, too. The state switched to lethal injection in 1996 in order to make executions as painless as possible. Now defense lawyers have used that goal to postpone the execution of a man -- who raped, bludgeoned, strangled and knifed 17-year-old Terri Winchell -- because he might conceivably feel pain after being injected with the first of the three drugs used according to the state's execution protocol.
Last year, a study published in the Lancet found that 43 in 49 executed inmates may not have had sufficient drugs in their system to ensure unconsciousness when they were injected with other drugs that could cause pain to the conscious. (Critics question the results as the blood work often was done hours after the execution.) Morales' attorneys argued that some condemned California inmates may have felt pain because they breathed longer than an expert expected and witnesses saw some inmates' bodies move after the first injection.
Fogel noted that the court understood that "over 99.999999999999" percent of the population would be rendered unconscious within a minute of a properly administered shot of sodium pentothal. That should mean: case closed. Morales will have to take his chances.
But no, in order to spare Morales any possibility of pain, Fogel told the state to have a doctor present in order to make sure Morales was unconscious before prison staff injected the other drugs. The state also had the option of administering a shot of sodium pentothal only -- it would take longer, and Fogel added that only a licensed professional could administer the final needle.
That is, Fogel made the huge mistake of ordering that doctors participate in executions. No surprise, two volunteer anesthesiologists backed out on execution eve. Their careers would have been toast if their names got out. And frankly, doctors should not and need not be involved in an execution. (If killing people required professional skills, death row would not be full.)
Nathan Barankin of state Attorney General Bill Lockyer's office put it succinctly: "The goal here for death penalty opponents is to say that the only way to conduct executions is to have medical professionals do it, and then rely on the medical community to ensure that no medical professionals could ever do it, with the hope that it will spell the end of the death penalty."
If that was the goal, then it worked. The state was forced to postpone an execution ordered for a murder committed 25 years ago and a death sentence issued 23 years ago. At San Quentin prison, justice delayed is the only justice -- as Terri Winchell's family can attest.
Fogel will hold hearings on the issue in May. Lance Lindsey of Death Penalty Focus, which opposes capital punishment, supported the Morales defense tactics. "It's not gamesmanship, honestly," Lindsey told me. "Defense lawyers fight like hell for their client" -- and they should fight to make sure that Morales gets the right amount of drugs needed.
Lindsey also will be the first to tell you that he opposes everything about the death penalty. He sees it as uncivilized, and if the courts and doctors find a way to sabotage capital punishment, he'll be happy.
His side might win. Clearly, the court has given up on common sense, as it strains for executions without suffering. You can't take the punishment out of capital punishment.
Sorry, but this is an execution. While the state has sought to execute murderers without inflicting unnecessary pain, the idea is to take his life. Unpleasantness is part of the package.
One essential: The guy who is being executed is not supposed to like it. I hope he doesn't suffer, but if he does, it shouldn't be for long. If judges don't understand that, this country is doomed. After all, if executions are guaranteed to be painless, why not apply that standard to prison sentences?
It is a sure sign of a society's decline when the governing elite care more about how things are done than what they do. The death penalty is supposed to mean this -- that at the execution, there is a 100 percent chance the convicted killer dies. On Tuesday, the more salient issue was the .000000000001 chance that he might not feel good dying.