LOS ANGELES (AP) — A judge turned down a bid Monday by the Los Angeles County district attorney to order the immediate execution of two death row prisoners by a new single-drug injection method.
Superior Court Judge Larry Paul Fidler said he did not have jurisdiction to order the procedure that has never been used in California.
Executions in the state have been on hold for years while appellate courts consider the legality of the three-drug protocol now in place.
There are currently 725 prisoners on death rows in California, where voters will consider a ballot initiative in November that would replace the death penalty with life in prison without possibility of parole.
At Monday’s hearing, Los Angeles County District Attorney Steve Cooley suggested a virtual end-run around the current logjam in the 9th U.S. Circuit Court of Appeals over the way executions are done.
Deputy District Attorney Michelle Hanisee said the three drugs used previously are no longer available, and a pharmaceutical company plans to stop making one of them.
The decision by Judge Fidler came as San Mateo County District Attorney Steve Wagstaffe asked a judge to set an execution date for Robert Fairbank, who was sent to death row for the murder of a San Francisco woman in 1985. A judge is expected to consider Wagstaffe’s request in October.
Cooley’s motion involved the requested execution of two murderers who have been on death row for more than 25 years.
Mitchell Sims and Tiequon Cox have exhausted all of their appeals. Cox, a gang member, was convicted of shooting a grandmother, her daughter and two grandchildren in 1984.
Sims was convicted of shooting a pizza deliveryman in Glendale in 1985 after killing two co-workers at a restaurant in Hanahan, S.C. He fled to California with his girlfriend, who also was convicted and is serving a life sentence. Sims also faces a death sentence in South Carolina.
The most recent execution in California came in 2006, the same year a federal judge imposed a moratorium following complaints that the three-drug method was causing excruciating pain and was cruel and unusual punishment. A state ruling in 2011 cited the same issue.
There have also been objections from the medical community to having medical personnel, including anesthesiologists, participate in executions.
At a hearing in July, expert witness John McAuliffe, a former corrections officer who has been contracted to develop the new single-drug protocol, disclosed that a California team of executioners was rehearsing how to use a new lethal injection to end the lives of death row prisoners with a single drug. The team included registered nurses who knew how to insert IV lines, he said.
A representative of the attorney general objected that the single drug protocol had not been approved by the 9th U.S. Circuit Court of Appeals.
Proposition 34, the upcoming ballot initiative, argues that California has spent $4 billion on a dysfunctional capital punishment system that has resulted in just 13 executions since the death penalty was reinstated in 1978. For a brief period beginning in 1972, the death penalty was held as unconstitutional in the state and death sentences were commuted to life.
In his remarks in court, Fidler referred to the upcoming ballot measure and said the people of California will have the opportunity to decide the future of capital punishment.
“If they set aside the death penalty, that’s it,” he said. “Then they’re expressing what their will is at this time in society, and that they don’t want it to take place.”
If they reject the ballot proposition, the death penalty for those who have exhausted their legal remedies “will have to be done in an efficient manner,” Fidler said.
He said a trial court cannot make the decision to change the death penalty protocol.
“I don’t think this court is the appropriate forum,” he said.
(© Copyright 2012 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.)