Legal News Headlines

 
Copyright 2008 Dolan Media Newswires

 July 17, 2008 Thursday

SECTION: NEWS

LENGTH: 795 words

BYLINE: Aaron Bailey

BODY: 

A federal judge has tossed a lawsuit challenging Missouri's lethal injection method, ruling the state's protocol for executions is constitutional.

The ruling is a setback for the death row inmates who filed the suit challenging the medical credentials of their would-be executioners.

The decision potentially clears the path for the state to resume executions.

Attorneys representing the death row inmates vow the fight is not over and are considering legal options to challenge the judge's ruling.

"This is certainly not the final chapter in the litigation," said attorney Cheryl Pilate, who represents three inmates who were attempting to intervene in the suit. "There are many unanswered questions, and we're hopeful of getting relief in a higher court. "

U.S. District Judge Fernando Gaitan granted judgment on the pleadings for the Department of Corrections on Tuesday, a marked turn from his ruling in June in which he denied the same motion.

In his five-page ruling, Gaitan wrote that after "further reflection" of the U.S. Supreme Court's decision in Baze v. Rees and a 2007 ruling in a similar lawsuit filed by death row inmate Michael Taylor, Missouri's lethal injection protocol meets constitutional requirements.

"The revised protocol which the Department of Corrections has now adopted is constitutional on its face as judged by the standards established by the Supreme Court," Gaitan wrote.

The lawsuit claimed that the Department of Corrections has failed to employ medically qualified personnel to carry out executions, leading to a risk that death row inmates will be subjected to unconstitutional pain and torture during their executions.

Gaitan noted that in the Baze decision the court decided that a state "with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk" that meets the challenge asserted by the Missouri inmates.

Earlier this year, the U.S. Supreme Court ruled 7-2 in Baze that there was not a "substantial risk" that lethal injection causes pain.

Gaitan said that Missouri's revised lethal injection protocol disclosed during the discovery in the case shows that the standards set out in Baze are being met: The executioners all have at least one year of experience in their field and participate in at least 10 practice sessions a year.

The judge also noted that an experienced anesthesiologist has been added to the execution team, exceeding the requirements for constitutionality laid out in the Taylor decision.

In January 2006, Gaitan ruled in Taylor's case that Missouri's execution method violated the Eighth Amendment. The judge barred further executions until the state changed its process, including ensuring a certified anesthesiologist could help oversee executions.

But the 8th U.S. Circuit Court of Appeals last summer overturned the judge, finding Missouri's execution method was constitutional.

Reginald Clemons, Richard Clay, Jeffrey Ferguson, Roderick Nunley and Michael Taylor filed the current lawsuit after the appellate court cleared the way for Missouri to resume executions. Since the filing, three more death row inmates - Martin Link, Mark Christeson and William Rousan - have intervened in the suit.

All eight of the inmates involved with the suit have exhausted state and federal appeals of their sentences.

Attorney Ginger Anders, of the Washington, D.C., firm Jenner & Block, represents Taylor.

"We're obviously disappointed with the ruling, and we're considering our options," Anders said, declining further comment.

Kansas City attorney John Power, of Husch Blackwell Sanders, is the local counsel for the original plaintiffs. He couldn't be reached for comment.

John Fougere, a spokesman for the Missouri Attorney General's Office, which defended the Department of Corrections, did not return messages seeking comment.

Cheryl Pilate, of Olathe, Kan.-based Morgan Pilate, was trying to intervene in the case on behalf of three death row inmates: John Middleton, Russell Bucklew and Earl Ringo Jr. That motion was denied in Tuesday's ruling.

The Missouri Supreme Court had set a July 30 execution date for Middleton, but on Friday it granted a stay of execution. The court's order did not state why Middleton's execution was stayed, but Pilate said it could be inferred that it was in response to the then-pending motion to intervene in the federal case.

Pilate said that now that the motion has been denied, she will file a request to continue the stay of execution, pointing to a possible appeal of the judge's order and "additional reasons. "

"This issue is being hotly litigated," she said.

Middleton, 48, was convicted of killing two people in northwest Missouri in 1995. Before last month's stay, he was scheduled to be the first Missourian to be executed since October 2005.

LOAD-DATE: July 17, 2008