The StandDown Texas Project

California Appeals Court Upholds Moratorium; State Erred in LI Procedures

The California First District Court of Appeals ruling in Sims v. CDCR is available in Adobe .pdf format.

ReutersLegal posts, "California appeals court upholds moratorium on executions," by Ronnie Cohen.

A California appeals court upheld a judge's ruling on Thursday prohibiting the state from executing condemned inmates until it adopts a new lethal-injection protocol, in the latest judicial move against capital punishment in the state.

California has 736 inmates on death row but has not executed anyone in seven years.

A federal judge imposed a moratorium on executions there in 2006, ruling that the most populous U.S. state's use of a lethal three-drug cocktail amounted to cruel and unusual punishment.

Since then, corrections officials have tried to fix deficiencies in the injection procedure, but a state trial court last year imposed its own separate moratorium on executions after deeming the process "a substantial failure."

Thursday's California 1st Appellate District ruling came in a challenge by condemned murderer Mitchell Sims, who sued in 2010 arguing that one of three drugs to be used for executions was unnecessary and would cause excruciating pain.

Sims' attorneys also alleged the state failed to follow procedures in formulating its latest combination of drugs to be used in the lethal cocktail.

Superior Court Judge Faye D'Opal of Marin County, the site of San Quentin State Prison's death row, last year ordered a moratorium on killing inmates by lethal injection until the California Department of Corrections and Rehabilitation (CDCR) enacted new regulations in compliance with state rules.

A three-judge appeals court panel upheld D'Opal's decision.

"Calif. appeals court rules state made several errors in adopting new lethal injection rules," is the AP coverage, via the Washington Post.

Executions in California will remain suspended after a state appeals court ruled that corrections officials made several “substantial” procedural errors when they adopted new lethal injection rules.

The 1st District Court of Appeals said the California Department of Corrections and Rehabilitation failed to explain, as required by state law, why it was switching from a three-drug injection method to a single drug.

The court’s opinion, which affirmed a lower court ruling, also said the agency misled the public by not providing the documents and information it used to reach its decision.

Corrections spokeswoman Deborah Hoffman said in an email that the agency was reviewing the ruling.

“In the meantime, at the governor’s direction, CDCR is continuing to develop proposed regulations for a single-drug protocol in order to ensure that California’s laws on capital punishment are upheld,” Hoffman said.

The Los Angeles Times report is, "Appeals court deals California another setback on executions," by Maura Dolan.

In a decision written by Justice J. Anthony Kline, a three-judge panel of the 1st District Court of Appeal upheld a Marin County judge’s decision that the California prison officials failed to comply with public participation requirements when they last revised the state’s lethal injection procedures.

The appeals court said the Department of Corrections and Rehabilitation did not fully inform the public of alternatives to the three-drug method of execution the department favored.

“A hearing is ‘on the merits’ and ‘meaningful’ only if the interested public has timely received all available information that is relevant to the proposed regulations, accurate, and as complete as reasonably possible,” Kline wrote.

Corrections officials never explained why they favored continuing the state’s three-drug lethal injection or their reasons for rejecting other methods, the court said.

That failure was particularly significant because many commentators had complained that one of the three drugs the state has used --  pancuronium bromide -- could both create and mask excruciating pain by paralyzing inmates during executions, the court noted. The state’s own expert also had recommended a single-drug execution method.

Corrections officials told the court that they had responded to 29,416 correspondences from the public, posted notices of its proposal in all California prisons and held a lengthy hearing in which 102 people commented on the proposed lethal injection protocol.

But Kline said the state’s view of the purpose of the public participation law was “far too limited and simplistic.”

“Affected people cannot be thought to have been heard … simply because large numbers of interested people were provided an opportunity to be heard,” Kline wrote. “The public participation contemplated by the [law] is not a numbers game.”

"California's death penalty on hold again," by Howard Mintz for the Silicon Valley Mercury News.

Ensuring California's death penalty system remains in limbo for the foreseeable future, a state appeals court on Thursday scrapped the state's latest attempt to update its lethal injection procedures.

In a 28-page ruling, the 1st District Court of Appeal found that state prison officials failed to comply with administrative rules when crafting new regulations more than two years ago.

The unanimous decision of the three-justice panel sends California back to the drawing board, unless the Brown administration takes the case to the California Supreme Court and keeps more than 700 Death Row inmates on an indefinite reprieve.

"State court rejects new execution rules," by Henry K. Lee for the San Francisco Chronicle.

The ruling bolsters a freeze that state and federal courts have imposed on executions in California since the last one took place in January 2006.

Later that year, a federal judge ruled that the executions, carried out by poorly trained staff in a dimly lit chamber, posed an undue risk of a prolonged and agonizing death in violation of constitutional standards.

If state officials are able to eventually pass valid regulations, they still must convince a federal judge that the new rules eliminate the risk of cruel and unusual punishment.

Earlier coverage of California lethal injection issues begins with oral arguments before the appeals court.  Also available is coverage of California legislation.

Related posts are in the lethal injection category index.

Kentucky May Resume Executions in Spring

That's the title of Brett Barrouquere's AP report, via the Evansville Courier & Press.

Kentucky has moved one step closer to resuming executions — perhaps in the spring — by sending new rules for lethal injections to lawmakers. Once approved, the state will ask the judge who halted executions more than a year ago to lift his order.

The revised regulations specify that doses of the drug used in the one-drug execution — 3 grams of sodium thiopental or 5 grams of pentobarbital — be repeated if the inmate has not died within 10 minutes. In a two-drug execution, the warden may authorize continued injections of 60 milligrams of hydromorphone until the inmate dies if the initial injection is not deadly.

Also under the new rules, there will be no specific time limit on an inmate's last words. The warden at the Kentucky State Penitentiary in Eddyville has the option of shutting off an overhead microphone if the statement is deemed "intentionally offensive" to witnesses or excessive in length.

The Justice Cabinet made the changes after a public hearing in September over the proposed switch from using three drugs to carry out an execution to a one or two-drug method. State officials filed a "statement of consideration" with the Legislative Research Commission on Thursday.

The switch became necessary after Franklin Circuit Judge Phillip Shepherd struck down Kentucky's three-drug method more than a year ago and ordered a one-drug process put into place before any more executions would be allowed.

In making the move, Kentucky joins at least seven other states that use one drug. It also would allow the state to avoid having to defend the three-drug method at a trial.

And:

The Justice Cabinet made no changes to the bulk of the regulations, including how much of the process is visible to witnesses, when an attorney may last see a client before an execution and how and when a determination about the inmate's competency is determined.

The new regulations are at least the sixth different method of carrying out injections among the 33 states that execute inmates. States now use a variety of procedures, including a three-drug protocol with sodium thiopental, a three-drug method with pentobarbital and single drug executions with sodium thiopental or pentobarbital. Missouri recently switched to the sedative propofal. Kentucky's new plan makes a half-dozen ways executions may be carried out.

The regulations are similar to Ohio's and cover a variety of details about how an execution is carried out, ranging from when an inmate is moved from death row to the holding cells where the execution chamber is housed to who pronounces the inmate dead and how.

The article notes that Kentucky has conducted three post-Furman executions since 1977.

Earlier coverage of Kentucky lethal injection issues begins at the link; also available, additional coverage from Kentucky.

Related posts are in the lethal injection index.

Additional Coverage From Kentucky Lethal Injection Public Hearing

Today's Evansville Courier & Press publishes the AP report, "Kentucky's execution method still debated," filed by Brett Barrouquere.  Here's an extended excerpt:

Two of the three inmates executed in Kentucky since 1976 didn't contest their fates and went willingly to their deaths. One attorney worries that, under the state's new proposed lethal injection rules, the inmate's attorney won't be notified in time to stop the process if a future volunteer has a change of heart.

Tom Griffiths, a Lexington attorney, was one of 11 people to address a public hearing Tuesday in Frankfort about Kentucky's proposed execution method. A death row inmate could change his mind in the days or hours leading to an execution but still be put to death if not given the chance to speak to an attorney, Griffiths said.

"It doesn't allow for any input at all," Griffiths said.

The hearing was part of the legal process that could allow the state to resume executing inmates by the spring. The Kentucky Justice Cabinet must submit the proposed regulations to the Legislative Research Council by Oct. 15. The regulations then go to legislative committees for consideration. If there are no delays, state officials expect to appear before Franklin Circuit Judge Phillip Shepherd in February or March to ask him to lift an order barring inmates from being put to death. That order cited problems the judge found with the state's three-drug lethal injection method.

Kentucky is trying to switch to a method similar to the one used by other states, with either a single dose of the anesthetic sodium thiopental or pentobarbital, a short-acting barbiturate. The state may use two drugs — the anti-seizure medication midazolam, better known as Versed, and hydromorphone, an analgesic known commonly as Dilaudid — if the chemicals used in a single-drug execution are not available seven days in advance.

The state estimates the cost of a single execution under the new process at $81,438. Under the three-drug method, the estimated cost to all the agencies involved was $63,516. The increase appears attributable to rising costs for the services provided by multiple agencies.

Death penalty opponents offered multiple critiques of the proposed method, ranging from access to attorneys to the two-minute time limit a condemned inmate is given to make a final statement.

WTVQ-TV reports, "Kentucky Continues Toward Resuming Lethal Injections," by Amanda Stevenson.

A hearing in Frankfort called for a change in execution protocol Tuesday morning.

Inmates on death row in Kentucky have not been eligible for execution since 2010.
 
That was when Franklin County Circuit Judge Phillip Shepherd ruled that lethal injection procedures needed to be reexamined.

Kentucky is switching to a one- or two-drug lethal injection after a three-drug cocktail ran into legal and supply problems earlier this year.
 
But critics say the new system could be just as problematic.

And:

The proposed regulations must be submitted to the legislative research council by October 15th.
 
And, if there are no delays, state officials say the order against lethal injections could be lifted by March of next year.

Earlier coverage of the proposed Kentucky lethal injection changes begins at the link.

Public Hearing on Kentucky's Proposed Lethal Injection Protocol

WFPL-FM posts, "Proposed Execution Protocol Gets Hearing in Frankfort," by By Rick Howlett and the Associated Press.

The Kentucky Justice Cabinet heard today from critics of the state’s proposed new death penalty method.

They’re asking officials to make multiple changes to how executions are carried out, now that the state is switching to a one-or-two drug lethal injection.

Public defenders, private attorneys and anti-death penalty activists said during a hearing in Frankfort that the rules Kentucky wants to put into place have multiple problems.  One would not allow condemned inmates to have access to their lawyers on the day of execution.

The state has been formulating a new death penalty method since a judge invalidated the three-drug lethal injection process earlier this year. 

Earlier coverage of Kentucky lethal injection issues begins at the link.  Related posts are in the lethal injection category index.

Texas Eyewitness ID Standards in Draft Form

The Houston Press notes, "Eyewitness Testimony & Police Lineups: Have Your Voice Heard."  It's by Richard Connelly.

​Texas is trying to develop a model statewide policy on eyewitness testimony and the use of police lineups -- like, you know, the cop in charge can't point out a suspect to the witness with his eyes and subtle pointing, that kind of thing.

And they want your input.

The Bill Blackwood Law Enforcement Management Institute of Texas is charged with developing the policy; they have a draft online.

And:

"The proposed policy is based on scientific research in the field and was developed in collaboration with law enforcement agencies and special interest organizations across Texas," the group says.

If you want to e-mail your comments and suggestions on the policy, the address to use is [email protected].

The model policy process was mandated in legislation that passed during the 2011 of the Texas Legislature as HB 215.  Earlier coverage of the legislation begins at the link.  In turn, that legislation was a recommendation of the Timothy Cole Advisory Panel of Wrongful Convictions.

Related posts are in the eyewitness identification index.