Nation - Kentucky Judge weighs challenge to lethal injection No death warrants issued since new procedure went into effect

By Brett Barrouquere

Associated Press Writer

FRANKFORT, Ky. (AP) -- A state judge said Wednesday he would soon decide whether three death row inmates have properly challenged the way the state's new lethal injection protocol was adopted and possibly on the merits of whether the method itself needs to be re-examined.

"These questions need to be answered and they need to be answered promptly," said Franklin Circuit Judge Phillip Shepherd.

The state Supreme Court in November barred Kentucky from conducting executions, finding that officials improperly adopted the three-drug injection method. The state Justice Cabinet, which oversees the protocol, adopted some changes to it and a pair of legislative committees approved the method.

The new procedure went into effect May 7, but no death warrants have been issued since. Attorneys for the state says there is nothing that prevents executions from being set.

Shepherd noted that warrants could come "at any time."

The suing inmates, Ralph Stevens Baze, Thomas Clyde Bowling and Brian Keith Moore, revived a closed lawsuit and asked Shepherd to find that Kentucky violated the state Supreme Court order in the way it adopted the new method.

Attorneys for the state say a new lawsuit may need to be filed to challenge the method, an argument Shepherd said he'll consider before weighing in on how it was adopted.

Warrant requests on Baze and two other inmates have been pending since November. Public defender David Barron, who represents the inmates, said Gov. Steve Beshear's office has set a deadline to provide mitigating information before a decision is made on a warrant. That could come by next week, he said.

Steve Lynn and Brenn Combs, attorneys for the Kentucky Department of Corrections, said though no warrants have been signed, there are no orders preventing an execution from going forward.

An after hours call to Kerri Richardson, a spokeswoman for Beshear, was not immediately returned Wednesday.

The challenge Shepherd heard raises similar concerns to the old one. It claims the state failed to spell out how the chemicals would be injected, authorizing people not qualified to insert intravenous lines to handle the execution and not allowing death row inmates to address a public hearing about the three-drug protocol.

Barron said Kentucky's new protocol has multiple violations of high court order, including a lack of specificity about how the drugs are mixed and that condemned inmates were not allowed to speak at the public hearing on the method.

"The court is effectively saying all executions are prohibited until the protocols are properly in place," Barron said.

Combs said the regulations governing a lethal injection are specific enough to provide instruction on how to carry out an execution without being so specific as to give away security information or limit the flexibility of the execution team.

Combs said inmates weren't brought to Frankfort for the public hearing in January for logistical reasons and because the state wasn't obligated.

"There is no law in Kentucky that lets us take any prisoner in any jail to every public hearing," Combs said. "It is an impossibility for us to bring all of the inmates."

When the high court halted executions, warrant requests were pending for Baze, 54, who was sentenced to death in 1992 for killing a Powell County sheriff and deputy, Robert Carl Foley, 53, awaiting execution for the slayings of six people in two incidents, and Gregory Lee Wilson, 53, condemned for kidnapping, raping and killing a woman in northern Kentucky in 1988.

The Attorney General's office does not currently have requests for death warrants for Bowling, condemned to death for a double murder in Lexington in 1990, and Moore, sentenced to death for a 1979 murder in Louisville.

Kentucky has executed three people since 1976. Harold McQueen was executed in the electric chair in 1997 for killing a convenience store clerk in 1981. Eddie Lee Harper was executed by lethal injection in 1999. Marco Allen Chapman was executed by lethal injection in November.

Published: Fri, May 21, 2010