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SAN JOSE � A federal judge appeared disinclined Thursday to believe that a chemical used to paralyze death row inmates during lethal injections could curtail prisoners’ First Amendment rights to free speech. U.S. District Judge Jeremy Fogel said condemned double murderer Donald Beardslee “hasn’t shown a sufficient violation of his constitutional rights.” Fogel, who is reviewing Beardslee’s appeal of his scheduled Jan. 19 execution at San Quentin, is expected to rule today. Beardslee wants his execution halted on grounds that pancuronium bromide could violate his free speech rights by preventing him from telling witnesses that he was uncomfortable or in pain. Legal experts say it’s the first time they’ve heard this line of argument advanced in a death penalty case. However, a state prosecutor said Beardslee must first prove a violation of the Eighth Amendment ban on cruel and unusual punishment — specifically, that an inmate is still conscious after sedatives are injected — before lodging a First Amendment appeal. Death row inmates receive three chemicals when executed: sodium pentathol, a barbiturate; pancuronium bromide, which causes paralysis; and potassium chloride, which induces cardiac arrest. “There is minimal, if any, risk of the inmate being conscious after sodium pentathol is provided,” Dane Gillette, senior assistant state attorney general, told Fogel. But defense attorney Steven Lubliner of Petaluma passionately argued that the court should “be concerned with the probability of an accident.” Lubliner said the state wants to conceal the horrors of lethal-injection executions. While the inmate appears to be merely falling asleep, he is in fact paralyzed and in excruciating pain as the chemicals stop his heart, said Lubliner. “The government’s position boils down to, ‘We’re the government, trust us’ — which is the equivalent of ‘the check is in the mail,’” Lubliner said. But Gillette said Beardslee’s appeal was simply a new twist on an old argument, adding, “I don’t think counsel has proven anything — it’s just allegations.” Gillette said Beardslee’s case was no different from the appeal of fellow death row inmate Kevin Cooper. Cooper argued last February that if the sodium pentathol was ineffective, execution witnesses would not realize Cooper was in pain as more drugs were administered. That argument was rejected by Fogel and later by the Ninth Circuit U.S. Court of Appeals, although the execution was stayed on an unrelated appeal. “It’s nothing more than a variety of First Amendment-type claims heard around the country where inmates allege that witnesses won’t be able to tell that they are in pain,” Gillette said of Beardslee’s appeal. Fogel seemed to agree. “I don’t think the words ‘First Amendment’ ever appear [in the appeal] — but the intent is the right of the public and the world to see what’s really happening [in an execution] and that seems identical,” he said. Gillette added that 27 of the 37 states that permit capital punishment use the same mix of lethal drugs as California, and that other courts “haven’t found that the inmate would suffer any cruel punishment.” The state attorney said Beardslee also did not argue claims in a habeas corpus petition, instead waiting until a late date to appeal. Lubliner said after the hearing that reports from previous executions indicate that inmates were at various levels of consciousness as fatal chemicals were administered. He added that he was pursuing the case because “I fear that Mr. Beardslee will be tortured.” Beardslee was sentenced to die for the drug-related slaying of two young women in San Mateo County 20 years ago. His attorneys also failed on another front Thursday to block his execution. They argued last week before the Ninth Circuit that his conviction should be overturned because the state Supreme Court had tossed three of four special circumstances. But a three-judge panel didn’t buy that. And late Thursday, the Ninth Circuit announced that it had declined to review the panel decision. Beardslee could ask the U.S. Supreme Court to review the Ninth Circuit, but certiorari is unlikely. The case Fogel is hearing is Beardslee v. Jeanne Woodford, Director CDC, CV 04-5381.

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