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As they promised they would when the Georgia Supreme Court found electrocution “cruel and unusual,” death penalty lawyers have begun to assail lethal injection on the same grounds. Lawyers in five cases have filed identical motions, written by Multicounty Public Defender B. Michael Mears, in Fulton County Superior Court challenging lethal injection as “offensive to human dignity.” In his motion, Mears argued that using a therapeutic medical procedure to execute the condemned “ignores the evolving standards of decency by which our state and our nation governs its judicial conduct.” Mears brought his motion in defense of Jeffrey Ray Sharp, who faces execution if a jury convicts him of the Aug. 19, 1997, beating, rape and murder of Jessica Schultz. The General Assembly in 2000 amended O.C.G.A. � 17-10-38 to provide that the state would switch its execution method to lethal injection, should the Georgia Supreme Court find electrocution unconstitutional. In a 4-3 decision earlier this month the high court did so, on the grounds that it violates the state constitution’s ban on cruel and unusual punishment under Art. I, � I, Par. XVII. Dawson v. State, No. S01A1041, Moore v. State, No. S01A041 (Sup. Ct. Ga. Oct. 5, 2001). Thomas M. West, one of the lawyers who mounted the challenge to the electric chair on behalf of Timothy Carl Dawson, now says it’s time for “an Armageddon on the issue of lethal injection.” And Fulton Superior Court Judge Wendy L. Shoob has granted West the opportunity to stage one. She agreed to allow West and Mears to present their argument against lethal injection in the Dawson case at a daylong hearing Nov. 21. Shoob’s January order on electrocution in the Dawson case was the first in the state to declare the electric chair unconstitutional. West says he hopes the second challenge before Shoob to an execution method meets such success. However, Shoob’s order on the electric chair might prove an obstacle to the lawyers’ new challenge. The judge based part of her reasoning on the availability of a more humane alternate method of lethal injection. “[T]he Court finds that a less cruel and more humane means of execution is available and being used in other states, and now in Georgia (at least for crimes committed after May 1, 2000), that being lethal injection,” she wrote. In the Sharp case, Judge Isaac Jenrette told Mears he wasn’t inclined to hold a hearing on his motion on behalf of Sharp. Jenrette told Mears he would accept briefs on the issue of whether the court should hold a full hearing. The state maintained that Sharp has not been convicted, and thus lacks standing to bring the motion. Mears says there are four other cases in which the defense plans to introduce the record from any hearing that a court grants on lethal injection. Two of the cases are in Fulton, one of them in Butts and one in DeKalb. “We’ve got the witnesses ready to go,” Mears says. NEXT EXECUTION SET However, the challenge may come too late to stave off Georgia’s first execution by lethal injection. On Wednesday, lawyers for Terry Mincey were trying frantically to keep their client alive past his scheduled execution date, set for today. Their efforts included appeals to the State Board of Pardons and Parole and a request for a stay from the Georgia Supreme Court. Mincey was condemned to die for his role in the 1982 murder of a convenience store clerk in Macon. And another execution follows closely behind. The Taliaferro County Superior Court has set the window of execution for Jose Martinez High between Nov. 6 and Nov. 13. High faces the gurney for the 1977 robbery, kidnappings and murders of Henry Phillips and Phillips’ 11-year-old stepson, Bonnie Bullock. Mears says he thinks the state is moving too fast to implement a procedure that nobody has vetted fully. “For them to move forward as fast as they have — it’s like they think they’ll never have another chance to execute someone,” Mears says. “They’re really rushing forward, trying to beat us to court.” CASE AGAINST LETHAL INJECTION Lethal injection generally involves the use of three drugs administered through an intravenous catheter. Sodium Pentothal causes a general anesthesia; Pavulon immobilizes the condemned; and potassium chloride stops the heart. But Mears’ brief lists nine problem areas for the state’s lethal injection procedure. Among them are: standards for mixing the proper dosages and concentrations of the three drugs, standards for inserting the catheters, and standards of training and qualification for those administering the drugs. The state statute does not call for the use of physicians in the process. Under the Code of Ethics of the American Medical Association, a doctor may not participate in a lethal injection. (Code of Medical Ethics: Current Opinions with Annotations, Opinion 2.06). That leaves a lot of room for error, Mears says. In his brief, he lists 21 botched lethal injections nationwide. The anecdotes tell of “blowouts,” in which the catheter pops out of the convict’s vein part of the way into the execution. They also note situations in which officials did not administer the drugs in the proper dosages, leading to gasping, gagging, choking and spasmodic bucking against the restraints. In other instances, the condemned men’s veins were so poor from longtime drug use that personnel had to perform a “cut down,” a surgical procedure to expose someone’s veins. Some of the executions took longer than an hour to complete. Mears says the chance of making a mistake in an injection is too high to qualify the procedure as an acceptable means of execution. “[I]t is unreasonable to subject Mr. Sharp, or any other condemned prisoner, to what amounts to a game of Russian Roulette, requiring him to bear a significant risk that his execution will be botched,” he wrote. Further, Mears argues, Georgia’s procedure is new and hasn’t been tested yet. The state’s lack of experience in administering lethal injections creates high odds that something will go horribly wrong, he says. “There can be no ‘one free execution’ rule under applicable constitutional doctrine that would automatically entitle Georgia to ‘try out’ a newly adopted method of execution regardless of how flawed or likely to result in pain,” he wrote. DECENCY STANDARD In striking down electrocution, the Georgia Supreme Court relied on Fleming v. Zant, 259 Ga. 687, 690 (3) (386 SE2d 339) (1989), which establishes that courts should evaluate the “evolving standards of decency that mark the progress of a maturing society,” when reviewing the constitutionality of a means of execution. Mears says he hopes the court will “apply the same standard and come to the same conclusion” about lethal injection. But in her opinion on electrocution, Justice Carol W. Hunstein wrote that the court “was influenced greatly” by the amended code that provided for the adoption of lethal injection for those condemned to death for crimes committed after May 1, 2000. The court’s majority opinion took into consideration a shifting community consensus on the proper method of execution, she wrote. Mears says the recent adoption of lethal injection as a more humane method of execution isn’t a problem for this new challenge. “It’s all relative,” he says. “Relative to electrocution, lethal injection does appear to be more humane. That doesn’t mean it is.” If the court finds a problem with lethal injection, Mears says, the state can look for another way to execute the condemned. “Georgia has not asserted that it would be impracticable or unreasonable to design and implement an execution protocol that would ensure a swift, painless and humane execution,” he wrote. “Nor has Georgia ever suggested that no other methods of execution, besides lethal injection, exist that could achieve this result.” However, he says, lethal injection is not acceptable. “This is a really bad way to put someone to death,” he says.

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