By ROSANNA RUIZ and ALLAN TURNER
Copyright 2006 Houston Chronicle
A decision today from the state's highest criminal court could provide an indication of how Texas will handle death penalty appeals that question the constitutionality of lethal injection.
Earlier this week, the Texas Court of Criminal Appeals postponed the execution of Houston killer Derrick Sean O'Brien, whose attorneys cited the method in their appeal as an unconstitutionally cruel and unusual manner of death.
If the same court grants a stay to death row inmate Jermaine Herron, who is scheduled to be executed tonight, the decision makes clear that the court is awaiting direction on the issue from the U.S. Supreme Court, legal experts said.
The high court is expected to rule by July on how to handle appeals that claim death by lethal injection is cruel and unusual punishment prohibited by the Constitution.
The injection method was challenged in O'Brien's case, prompting the postponement. Herron's attorneys, with help from the Texas Defender Service, were preparing filings on a similar issue Tuesday.
"It's highly unusual for the Court of Criminal Appeals to take the action it did in this case," said Rob Owen, a University of Texas adjunct law professor and death penalty expert. "Certainly, Texas continues to execute people on a regular basis, although many of them try to file last-minute appeals, and this is one of the few that has had some success."
Monday's stay was issued the day before O'Brien, 31, was to die for the June 24, 1993, rape and murder of Jennifer Ertman, 14, and Elizabeth Peña, 16 — a savage crime that horrified the city in a way that few others have. O'Brien was one of five people originally sentenced to die for the crime; his would have been the first execution carried out.
The court's ruling might generate a "temporary moratorium" on executions, which may also delay Herron's scheduled execution, suggested David Atwood, president of the Texas Coalition to Abolish the Death Penalty.
Herron, 27, was sentenced to death for the shooting deaths of Betsy Nutt, 41, and her 15-year-old son, Cody, at their home on a ranch in Refugio County in South Texas nine years ago.
David Dow, a professor at the University of Houston law school and another death penalty expert, said a moratorium that extends beyond July is unlikely.
The Court of Criminal Appeals, he said, will simply wait until the U.S. Supreme Court issues its ruling in a Florida case that also raised objections to the lethal injection method.
Officer's killer seeks ruling
By July, the high court will decide, in Hill v. McDonough, whether Clarence Hill, who was convicted in the 1982 murder of a police officer, can get a last-minute hearing to challenge the execution method. The Supreme Court has so far declined to directly address the constitutionality of lethal injections.
Hill, who has exhausted his normal appeals, argues he should get a hearing based on a claim that his civil rights would be violated if the execution goes forward.
During oral arguments, a majority of the justices expressed concerns that inmates may suffer great pain before they die. But several justices questioned whether Hill and other inmates are trying to manipulate the law and tie up the courts with endless appeals.
The central argument about the lethal three drug-cocktail focuses upon the effectiveness of the initial anesthetic — sodium thiopental, a short-acting barbiturate first used during surgery in the mid-1930s. Capable of rendering an individual unconsciousness in less than a minute, the anesthetic effect, though it can vary, generally lasts three to five minutes. In surgery, the usual dosage is 3 to 5 milligrams per kilogram of body weight. A 165-pound man typically would receive 210 to 350 milligrams. In executions, 2 to 3 grams of sodium thiopental typically are injected, an amount authorities say is lethal.
Also administered during executions is pancuronium bromide, which paralyzes the muscles, and potassium chloride, which activates the nerve fibers lining the inmate's veins and causes cardiac arrest.
Texas' combination includes 3 grams of sodium thiopental, 100 milligrams of pancuronium bromide and 140 milliequivalents of potassium chloride.
"The drugs are administered sequentially with intervening saline flushes over a period of approximately five minutes," said Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice. "This combination of drugs creates no substantial risk of pain."
Pain is at issue
But in a 2005 article in the British medical journal The Lancet, Dr. Leonidas Koniaris, surgical oncology chairman at the University of Miami, found that up to 40 percent of executed prisoners studied may have been conscious and suffered excruciating pain during execution. Koniaris' study examined levels of the anesthetic still in the blood of executed prisoners at the time of autopsy.
Pancuronium bromide is a muscle relaxant used in surgery to allow doctors to insert a breathing tube into the patient's trachea. Typically, up to 0.1 milligram of the drug is administered per kilogram of body weight. In executions, the drug is administered in lethal doses to collapse the prisoner's diaphragm and halt breathing. Amnesty International contends that the drug, because it paralyzes the recipient, can mask a condemned prisoner's pain.
The final drug used, potassium chloride, like the other substances, has legitimate medical uses. The salt is used to correct potassium deficiency, combat digitalis poisoning and replenish electrolytes.
In executions, high doses are used to induce cardiac arrest and rapid death.
Death penalty opponents contend that this administration of this drug is capable of causing a semiconscious but paralyzed prisoner excruciating pain.
Chronicle reporter Patty Reinert in Washington contributed to this story.
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