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Arizona execution process faces legal challenge

Arizona execution process faces legal challenge

Ruling sought on whether cloaking in death chamber violates inmate's rights

PHOENIX - In Arizona's death chamber in the minutes just before an execution, inmates lay strapped to a table with a white sheet pulled up to their necks.

Witnesses who are there partially to ensure that the inmates don't experience unnecessary pain don't see anything leading up to that point - it's just a person on a table about to be put to death with an injection they can't see.

The veiled process and other procedures followed by the Arizona Department of Corrections are being challenged in federal court.

U.S. District Judge Neil Wake scheduled a trial in the matter for Oct. 11 and can rule that the department is violating inmates' constitutional rights in the way it conducts executions, or find that the department has acted properly.

"All you see is a head sticking out from a sheet, and a guy sort of looks around, maybe makes a last statement and then closes his eyes," said Dale Baich, a federal public defender who has represented the most recent inmates executed in Arizona. "We want more transparency in the process, and that's what we hope comes of this litigation."

Baich argues that the Corrections Department is violating inmates' constitutional rights and deviating from execution protocol in five ways. Among them: using a new execution drug, using the groin area as the injection site and failing to leave injections uncovered.

He compared Arizona's process with some other states' procedures, during which witnesses see every step, including injections, he said.

Assistant Attorney General Kent Cattani, who will argue against Baich at trial, said the corrections officials themselves dictate protocol and can change it anytime they see fit.

"An inmate can challenge a change, but they have to show there's a high likelihood of significant pain or suffering because of the change," he said.

Cattani said he sees no reason why execution witnesses should view each step in the process.

"I'm not sure I understand why there would be a need for insertion of the femoral vein (in the groin area) to be witnessed," Cattani said. "All of these executions have been publicly witnessed; the inmate has been conscious; the inmate is perfectly capable of explaining that he has suffered severe pain; and that simply has not been the case."

The 9th U.S. Circuit Court of Appeals in San Francisco turned down a motion to delay last Tuesday's execution of Thomas Paul West over the legal challenge to the department's procedures, ruling that he'd failed to prove there was a substantial risk that he would experience severe pain during the execution.

But at a hearing the day before the execution, Judge Kim Wardlaw said the Corrections Department needs to follow protocol.

A catheter in West's right arm was visible to witnesses because the sheet had been moved over, although it was still up to his neck and covering the injection to his femoral vein. At the four executions before that, including one on June 30, no injection was visible because the sheet covered everything but the head.

In a prepared statement, department spokesman Bill Lamoreaux said West's sheet was pulled aside to show his arm injection "because it was the primary IV point and to be observed by the staff" and that in previous executions, the femoral vein had been the primary injection.

He said inmates are treated in "a most humane and dignified manner," and witnesses aren't allowed to watch every step for the privacy of the team conducting the execution and to protect inmates' dignity.

In the five executions since October, two of the inmates declined to say last words to a roomful of witnesses. The other three didn't say anything about experiencing pain, and one cheered his favorite sports team.

Up to five inmates whose appeals are nearing their end in court could have their execution dates scheduled early next year.

The state has executed 91 inmates since 1910; 28 have been put to death with lethal injection since the state began using that method in 1992.

Altogether there are 128 inmates on Arizona's death row.

Did You Know

Thomas Paul West and some friends bought furniture and electronics from Tucsonan Donald Lee Bortle, 53, in late June 1987, according to court records.

On July 12, West went back to the disabled man's west-side mobile home by himself, beat Bortle, hogtied him and left him to bleed to death as he robbed him.

West was convicted of first-degree murder and other charges and was sentenced to die Aug. 1, 1988.

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