Lethal injection blues

Mona Charen

2/24/2006 12:05:00 AM - Mona Charen

They found her body in a vineyard. Her purple sweater was pulled up revealing the knife protruding from her chest. Terri Lynn Winchell had been 17. It was 1981.

Michael Morales, whose execution was indefinitely delayed last week, was convicted of her murder. It was established at trial that Morales, a gang member, had killed Winchell as a favor to his cousin, Rick Ortega. The Modesto Bee reported that Ortega, who knew Winchell's boyfriend, persuaded the girl to take a drive with him. When Winchell entered the car, she was introduced to Morales, seated in the back seat. The three joked and chatted for a while, Terri believing that they were going to look for jewelry for her best friend. But Ortega turned off onto a country road. Morales then reached around the front seat with his belt and began to strangle Terri. She struggled and screamed for Ortega to help her, but he simply continued to drive. (Ortega is now serving a life sentence.)

After about 15 seconds, the belt broke. Morales then pulled out a hammer and began smashing the girl's skull. He hit her 23 times. When she ceased to struggle, Morales told Ortega to pull over and return in 15 minutes. He dragged Winchell from the front seat and onto the ground. He then raped her. He started to walk back to the meeting point with Ortega but then thought better of it and went back to the girl. He stabbed her four times in the chest.

Morales has been on death row ever since. But a federal judge in California has now cast into question whether he will ever be duly punished as a jury of his peers has directed he should.

Opponents of the death penalty have been rummaging through their bag of tricks and come up with the theory that lethal injection amounts to "cruel" punishment. California had been using a three-drug cocktail to execute criminals. The first, a barbiturate, induces unconsciousness. The other drugs paralyze the muscles and stop the heart. The drugs typically result in death within about seven minutes. Death penalty opponents argue that if the barbiturate for some reason fails to sedate the criminal, he might experience pain when the other drugs are administered yet be unable to gesture or signal distress due to the paralyzing nature of the other drugs.

Judge Jeremy Fogel bought it and demanded that California adjust its procedures by either having an anesthesiologist administer the drugs or using only barbiturates and not the other drugs to execute the criminal. California opted to seek the services of anesthesiologists but ran into a brick wall. The doctors insisted that their Hippocratic Oath forbade them to participate in taking life under any circumstances. National Public Radio quoted Dr. Priscilla Ray, chair of the American Medical Association's Council on Ethical and Judicial Affairs, who declared, "Our belief [that doctors should not participate in executions] is based on the fundamental ethical precept of medicine is that we first do no harm." And Dr. Jeffrey Apfelbaum, an anesthesiologist at the University of Chicago Hospitals, told the Chicago Tribune, "We are dedicated to preserving life whenever there's hope to do so. To take away life, or contribute to that, runs completely contrary to what we dedicate our lives to do." That's very gratifying to hear, if a little hollow in 2006. Does the American Medical Association take the same view of abortion? How about the University of Chicago?

But surely what we have here is yet another case -- they seem to happen every day -- of a federal judge arrogating to himself the right and responsibility to make sensitive moral and ethical judgments that are outside his province. Legislatures in 38 states have chosen to execute certain kinds of criminals. They chose the method they found least inhumane. It was their decision to make.

I don't disagree with the death penalty opponents that execution is an unpleasant business. I'm even happy to go with the Los Angeles Times's sarcastic suggestion that "we just shoot Michael Morales." But what I and most Americans find intolerable is the description of what happened when Morales heard that, once again, his lawyers had wrested a delay from the legal system. "He smiled."