California's stalled death penalty plunged deeper into disarray as a judge appeared poised to toss out the state's new lethal injection method as soon as Thursday, a move that would add to the growing uncertainty over the status of capital punishment here.
Marin County Judge Lynn O'Malley Taylor tentatively ruled on Tuesday to invalidate the state's new procedure, but said at a hearing Wednesday she wanted to consider how broad of a prohibition
The judge's tentative ruling came the same day the U.S. Supreme Court signaled it would continue to halt executions nationwide until it decides a challenge to Kentucky's lethal injection procedure.
California prison officials in May overhauled their process for injecting condemned inmates with a deadly three-drug combination after a federal judge said the previous execution procedure was so badly designed and carried out that it was likely to cause unconstitutional pain and suffering.
Taylor's ruling, if adopted as expected, won't touch on any of the constitutional issues before the U.S. Supreme Court and federal court system.
Instead she said prison officials violated an arcane administrative law that required them to treat the revised lethal injection procedure as a new regulation that required public comment and approval from the Office of Administrative Law, among other requirements.
"The means by which we execute people is a very substantial public issue," said Brad Phillips, an attorney representing the two condemned inmates who sued the state in Marin County to stop their executions.
"The lethal injection protocol in California is of great statewide prominence."
Phillips said even the previous lethal injection procedures used to carry out the last several executions should have gone through the administrative process, which he said would have helped the state avoid some of the problems it's facing in federal court over the design of its death penalty.
Deputy Attorney General Michael Quinn argued that the new execution method, which includes the remodeling of the death chamber to make it more spacious and better lit, is limited to only San Quentin Prison in Marin County and therefore not a statewide regulation.
"It applies to a small range of prisoners for a specified time at a single facility," Quinn argued Wednesday. He said he's unsure what the state would do if the state judge adopts her ruling.
All state executions take place at San Quentin.
There are 667 inmates currently on death row, including 15 women held at a prison in Madera County. No executions have been carried out since January 2006.
The next month, prison officials called off the execution of Michael Morales mere hours before he was to die for the rape and killing of 17-year-old Terri Winchell in a Lodi vineyard 26 years ago.
Prison officials said they could not comply with U.S. District Court Judge Jeremy Fogel's order that licensed medical professionals assist with the execution.
Fogel said in December he would declare the state's lethal injection process unconstitutional unless prison officials improved the procedure with better trained staff and an improved conditions in the death chamber.
Fogel was scheduled to tour the prison's remodeled death chamber Nov. 19.
There's also a growing sense that the U.S. Supreme Court has instituted an unspoken moratorium on lethal injection executions since it agreed in September to consider a challenge to Kentucky's capital punishment procedure.
On Tuesday, the high court halted an execution in Mississippi, less than an hour before a convicted killer was scheduled to be put to death by lethal injection.
It's the third such high court reprieve since Michael Richard was executed in Texas on Sept. 25, the same day the court said it would hear a lethal injection challenge from two death row inmates in Kentucky.
State and lower federal courts have halted all other scheduled executions since then.