A federal judge Monday ordered a delay in the execution of convicted ax killer Robert W. Jackson III.
The execution had been set for July 29.
The ruling by District Judge Sue L. Robinson marks the second time that Robinson has ordered a stay in the execution of Jackson, who was convicted of the 1992 slaying of Elizabeth Girardi at her home in Hockessin during a botched robbery.
In May 2006, Robinson stopped Jackson's previous date with the execution chamber because of a Jackson lawsuit -- that was later turned into a class action -- alleging that the way Delaware carried out lethal injections violated the U.S. Constitution's ban on cruel and unusual punishment.
After Delaware adopted new execution protocols, with new safeguards against unnecessary suffering, Robinson dismissed Jackson's lawsuit in February 2010, allowing executions in the state to resume.
On Monday, however, Robinson imposed a new stay, apparently because of concerns about the state of Delaware changing one of the three drugs used in lethal injections, a drug that was specified in the execution protocols that Robinson approved last year.
The judge has set July 27 to hear from both Jackson's attorneys with the Federal Community Defender's office in Philadelphia -- who charge that changing the drug violates the terms of Robinson's February 2010 ruling -- and Delaware prosecutors -- who allege that the change is minor and the execution should go forward as scheduled.
Deputy Attorney General Paul Wallace said Monday prosecutors are still evaluating Robinson's ruling and their options but said because Robinson set July 27 as a hearing date, Jackson's execution may still go forward as scheduled.
"The 29th is not out of the question," he said, depending on what happens at the hearing.
If Jackson's execution goes forward on July 29, it will be the first execution in the state since November 2005.
Delaware changed its execution protocols earlier this year because, like many states that execute using lethal injection, it could not obtain any sodium thiopental, one of three drugs used in that execution method. The sole U.S. manufacturer of sodium thiopental has stopped making it.
In their federal court motion, Jackson's attorneys argue that unlike sodium thiopental, the drug Delaware wants to substitute, pentobarbital, is not used clinically as an anesthetic.
In lethal injections, the first drug usually has been an anesthetic -- which puts the condemned to sleep -- followed by a paralytic agent followed by the final drug, which induces a fatal heart attack.
Jackson attorney Michael Wiseman also argued that Delaware has "no track record" in the use of pentobarbital and so it is unclear how the state will administer it and take the appropriate steps to ensure that it will be used properly.
But in papers filed late last week, Delaware prosecutors defended the substitution, saying there is no evidence that the use of the new drug will result in any "objectively intolerable risk of pain."
Deputy Attorney General Elizabeth McFarlan stated that though the new drug is not clinically used as an anesthetic, it has been used by doctors to induce barbiturate comas. She wrote that it is not used as an anesthetic because the effects of pentobarbital are "too long lasting" for use in surgery.
"To date, fifteen executions in 7 states have taken place by lethal injection using a three-drug protocol with pentobarbital as the 1st drug," she wrote, adding that no court has found that the use of pentobarbital is constitutionally unacceptable.
She concluded by arguing that pentobarbital has been used by veterinarians for years to euthanize animals and that Jackson's own attorneys had argued for the drug when they wrote in 2007, as part of Jackson's 2006 lawsuit, that Delaware should adopt the American Veterinary Medical Association's standards.
"Plaintiffs cannot reasonably complain about an amendment to Delaware's execution protocol to include the use of a chemical that they suggested would be constitutional," McFarlan wrote.
Death-penalty opponents, meanwhile, have cited problems with executions that have been carried out using pentobarbital, including one last month in Georgia where an inmate jerked his head several times and appeared to gasp for breath after the drug was administered. In addition to the motions filed in federal court, Jackson's attorneys are also seeking to have a state judge delay Jackson's execution, arguing that the Department of Correction did not follow proper procedures when it changed the execution protocols in May. Superior Court Judge Richard R. Cooch, who set Jackson's execution for July 29, is set to hear oral arguments on that point in state court on Wednesday.
Source: Delawareonline, July 13, 2011
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