In the eye of the storm: a judge's experience in lethal-injection litigation.

• Author: Fogel, Jeremy
• Position: The Lethal Injection Debate: Law and Science

INTRODUCTION

The case of Morales v. Tilton, (1) which challenges the constitutionality of California's lethal-injection protocol for executions, is unique among the many thousands of disputes over which I have presided in more than twenty-six years as a federal and state judge. It has demanded the most from me--intellectually, emotionally, and spiritually--of any matter that ever has appeared on my docket. While I may not comment on the merits of the case because it is still pending before me, (2) I am hopeful that those who read this Article will find my personal experience of interest, as a commentary on the workings of our legal system, a meditation on being a judge, and a reflection upon the potency of the death penalty as an issue in our society.

This Article focuses on five aspects of my personal experience. Part I reviews the history of my involvement with lethal-injection litigation--beginning in 2004 with the case of Cooper v. Rimmer (3)and how what I initially viewed as a far-fetched, entirely hypothetical argument about the potential risks of lethal injection came to concern me enough that I enjoined an execution. Part II discusses the cultural divide between the judiciary and the state bureaucracy that is responsible for carrying out executions, and the ways in which that divide has affected both the Morales case in particular and California's efforts to address questions concerning its lethal-injection protocol generally. Part III concerns the role and response of the news media in Morales and other lethal-injection cases. This Part also describes the anomalous experience of being a central figure in a major news story while at the same time being unable for ethical reasons to make any substantive comment about it. (4) Part IV discusses the reaction of the non-lawyer public to the lethal-injection controversy, and how the deep differences within public opinion about the death penalty overshadow and skew any discussion of the issues that legal challenges to lethal injection actually present. Part V discusses the ways in which Morales has affected my understanding of myself as a judge and as a person.

1. HISTORY

   1. Cooper v. Rimmer (5)

      Kevin Cooper was a convicted multiple-murderer who for many years had been pursuing habeas corpus proceedings based on a claim of innocence. (6) His habeas case had attracted significant media attention and was the latest flashpoint in California's ongoing debate about capital punishment. (7) On February 2, 2004, eight days before his scheduled execution date, Cooper filed a civil-rights claim under 4:2 U.S.C. [section] 1983, claiming that California's lethal-injection protocol was unconstitutional because it created an undue risk that the person being executed would experience excruciating pain. (8) Cooper sought a temporary restraining order to prevent his execution. (9) Because all executions in California are carried out at San Quentin State Prison, which is located in the Northern District of California, Cooper filed the case in our court. I drew the case by random assignment.

      My immediate reaction to Cooper's claims was extremely skeptical. Having been a judge for so long in a state in which capital punishment has been so controversial that three justices of the state supreme court were voted out of office because of their perceived bias against the death penalty, (10) I instinctively questioned the timing and context of Cooper's suit. In more than a decade of unending litigation since his conviction, Cooper had never challenged the constitutionality of California's method of execution. Further, because a serious inquiry into the factual basis of his lethal-injection claims could not possibly be completed within eight days, a decision even to conduct such an inquiry would require a stay of execution. Virtually all of the public statements made on Cooper's behalf focused on his claim of innocence, not the means by which he would be executed. (11) Even though Cooper's argument concerning lethal injection was well articulated by capable counsel, the factual premise of that argument--that a massive dose of sodium thiopental might be insufficient to ensure Cooper's unconsciousness prior to the administration of two other (potentially pain-causing) drugs--made little intuitive sense. (12) As I noted in denying Cooper's request for a temporary restraining order,

      [w]hile the stated objective of the present action is to address alleged deficiencies in California's lethal injection protocol, the timing of its filing reasonably suggests that an equally important purpose of the action is to stay Plaintiff's execution so that Plaintiff may continue to pursue claims going to the validity of his conviction. (13) Although the Ninth Circuit affirmed my ruling, (14) Cooper was not executed because the court accepted his successive habeas petition and ordered further proceedings in the district court that had considered his federal habeas claims. (15) While there was no legal impediment to his doing so, Cooper chose not to pursue his lethal-injection challenge, which eventually was dismissed without prejudice for failure to exhaust administrative remedies. (16)

   2. Beardslee v. Woodford (17)

      A year later, another death-row inmate, Donald Beardslee, filed a nearly identical challenge to California's lethal-injection protocol. (18) Because it raised substantially the same issues as Cooper, Beardslee's case was assigned to me under our court's related-case procedures. (19) Unlike Cooper, Beardslee did not assert his innocence of the underlying crime, and thus his lethal-injection challenge was his last realistic hope of avoiding execution. In addition, Beardslee filed his challenge approximately a month before his scheduled execution date, which permitted at least a preliminary examination of the merits of his claims without the necessity of a stay. (20)

      Even under these circumstances, I had a very difficult time finding substance in Beardslee's arguments. The pharmacological evidence seemed overwhelming: there was virtually no risk that a person receiving the quantity of sodium thiopental provided under the execution protocol would be conscious when the two drugs with the potential for inflicting pain were injected. (21) While there were ambiguous notations in several execution logs, it did not appear that any previous execution by lethal injection in California had gone seriously awry. Beardslee's argument that the paralytic effects of pancuronium bromide would have masked any failure to induce unconsciousness struck me as creative but ultimately without real substance; in the absence of an actual risk of inadequate anesthesia, there could be nothing to mask. As I had in Cooper, I denied relief, finding that Beardslee had failed to show a reasonable likelihood of success on the merits of his claims. (22) Following an unsuccessful appeal to the Ninth Circuit (23) and petition for certiorari to the Supreme Court, (24) Beardslee was executed, apparently without incident.

   3. Morales v. Tilton (25)

      In April 2005, a British medical journal, The Lancet, published a study of autopsy data from forty-nine lethal-injection executions. (26) The study found that forty-three percent of the executed inmates whose autopsy records were reviewed had concentrations of sodium thiopental in their blood that were consistent with awareness, apparently lending at least some credence to the questions about the three-drug combination that had been raised by Cooper and Beardslee in California and by others in similar cases around the country. (27) The next two California executions raised additional concerns, even though neither of the inmates involved asserted a lethal-injection challenge. The first case involved Stanley "Tookie" Williams, the founder of the "Crips" street gang, whose death sentence and claims of both innocence and post-conviction rehabilitation attracted international interest. (28) The execution team members responsible for inserting the catheters into Williams's veins were unable to set one of the two catheters required by the execution protocol and eventually gave up trying to do so. (29) Williams was executed, but the procedure took nearly twice as long as expected. (30) The second case involved Clarence Ray Allen, a septuagenarian inmate whose execution drew attention because of his age and his extremely fragile medical condition, which included advanced heart disease. (31) While the problems experienced in the Williams execution were not repeated, it took twice the designated dose of potassium chloride to make Allen's heart stop beating. (32) When asked why it was necessary to double a dosage that was intended and sufficient to cause almost instantaneous death in the healthiest of persons, San Quentin's warden suggested that "this guy's heart has been beating for 76 years, and it took awhile for it to stop." (33)

      It was against this background that Michael Morales, who had been on death row for nearly twenty-five years for a particularly heinous rape and murder, brought a new challenge to California's lethal-injection protocol in January 2006. (34) Once again, the case was assigned to me under the court's related-case procedures. (35) Because he filed his case even before his execution date was formally set by the state trial court, Morales was able to obtain expedited fact discovery prior to a hearing on his motion for a preliminary injunction. As I later noted, "the record in the present action [thus was] substantially more developed than the record in Cooper or Beardslee." (36) For the first time, that record contained all of the logs and other documentation for each of the eleven executions by lethal injection at San Quentin, including the recent executions of Williams and Allen. (37)

      By early February 2006, I had reached the conclusion that an independent factual inquiry into California's administration of its lethal-injection protocol was warranted. In the two years...