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The Fulton County judge who was the first jurist in Georgia to declare electrocution unconstitutional refused Monday to schedule a hearing on a similar challenge to lethal injection. An attorney for Timothy Carl Dawson, accused of the 1998 killings of three men at the Atlanta Hilton and Towers, argued to Fulton County Superior Court Judge Wendy L. Shoob that a hearing was needed to examine Georgia’s use of lethal injection. Defense lawyer Thomas M. West said events during two of Georgia’s three recent executions by lethal injection raised “serious questions” about the state’s protocols for carrying out the procedure. But Senior Assistant District Attorney Peggy A. Katz said such a hearing would be expensive and frivolous. In Dawson’s own case, Katz reminded the judge, the Georgia Supreme Court recently struck down the electric chair in favor of lethal injection. And implicit in that decision, she added, was that lethal injection “is an accepted, humane procedure.” Shoob agreed. The state supreme court, in an Oct. 5 decision, she noted, had before it evidence of the new lethal injection protocols and found lethal injection to be a minimally intrusive procedure that didn’t produce the mutilation generated by electrocution. Dawson v. State, No. S01A1041 (Sup. Ct. Ga. Oct. 5, 2001). “The supreme court [of Georgia] has been quite clear that lethal injection is the acceptable method of carrying out the death penalty,” Shoob said. The justices could have stayed any of the last three executions, but didn’t do so, she said. “If the supreme court doesn’t want to look at a case that is about to experience lethal injection, why look at it in a case where it is years away if at all?” Shoob said West could submit evidence for her to consider, but denied his request that she conduct an evidentiary hearing. Less than a month after the supreme court, ruling in Dawson and a second case consolidated with it, found the electric chair to be cruel and unusual punishment, defense lawyers began to assail lethal injection on the same grounds. Moore v. State, No. S01A1210 (Sup. Ct. Ga. Oct. 5, 2001). Their biggest obstacle, however, appeared to be their victory in the supreme court electric chair ruling. UNLIKELY TEST VEHICLE That ruling — coupled with Shoob’s Jan. 11 ruling in which she found lethal injection to be “a less cruel and more humane means of execution” — makes it unlikely that the Dawson case will be the vehicle of change on lethal injection that it was on electrocution. She originally had agreed to let West and co-counsel Robert H. Citronberg stage a hearing on the matter and had scheduled it for Wednesday. But prosecutors objected, filing a motion to bar such a hearing. Katz told Shoob Monday that there was no reason to conduct a hearing “when the supreme court has spoken just months ago, when this court has spoken.” But West argued that the legality of lethal injection wasn’t an issue before the supreme court, although he conceded that the justices did cite its availability as a less barbaric method of execution than electrocution. NO REVIEW OF EXECUTION PROTOCOLS “Perhaps a properly administered, properly established protocol might be a constitutional way to do it, but we don’t know [that] because no court in Georgia has reviewed the protocols,” West said. Two of the three executions carried out in Georgia in the past month have been “botched in some manner,” West said. Chemicals that were supposed to “knock out” condemned killer Jose High, didn’t work, West said, leaving High to cry out and thrash about during the procedure. And prison officials, after having trouble finding a suitable vein, made deep cuts in High’s hand to reach one and inserted a catheter in his neck, West said. “We’re not saying it’s per se unconstitutional,” he told Shoob. Carried out properly, lethal injection is probably the most humane method, he said. He asked Shoob for a chance to show that Georgia’s protocols need adjusting to ensure that the procedure does not involve the infliction of needless pain or mutilation. Katz said that an inability to find a vein immediately doesn’t mean the execution was botched. And, she argued, a defendant isn’t entitled to a “pain-free or instantaneous death.” Nor can West show that cruelty is inherent in lethal injection — a requirement to find that method unconstitutional, Katz said. Furthermore, she added, there is no available alternative to lethal injection and no reason to devote the resources of the court to a lengthy hearing on protocols that may not even be in place when and if Dawson faces execution. Shoob said she had agreed with West on the electric chair. Now, however, she said, “Here you are back, telling me what’s wrong with lethal injection.” West protested that he had never hidden his intent to challenge lethal injection. Dawson’s trial is scheduled for March 18. He is accused of shooting Phillip Dover, Gerrold Shropshire and Ronald Gutkowski repeatedly in their heads in what police said was a robbery.

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