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A federal judge Friday rejected a death row inmate’s request to halt his upcoming execution on grounds that a chemical used to paralyze condemned prisoners during lethal injections could impair their free speech rights. Barring a successful appeal, U.S. District Judge Jeremy Fogel’s decision means that convicted double murderer Donald Beardslee will be executed as scheduled at San Quentin on Jan. 19. Legal experts said Beardslee’s appeal was the first argument of its kind in death penalty law. But Fogel was unpersuaded, saying at a hearing Thursday that Beardslee “hasn’t shown a sufficient violation of his constitutional rights.” He took the case under submission and issued his ruling Friday afternoon. Beardslee argued in an application for a temporary restraining order to halt his execution that pancuronium bromide, the second of three chemicals injected into condemned inmates at executions, could violate his First Amendment rights by preventing him from telling witnesses that he was uncomfortable or in pain. But in a seven-page ruling, Fogel said he was unconvinced that there was any chance that an inmate would be conscious when receiving the paralytic drugs because doctors first administer a strong barbiturate, sodium pentothal. “Even with protocols under which only two grams of sodium pentothal — as opposed to the five grams used in California — are to be administered, the likelihood of such an error occurring ‘is so remote as to be nonexistent,’” Fogel said. Senior Assistant Attorney General Dane Gillette had argued that Beardslee must first prove an Eighth Amendment ban on cruel and unusual punishment — specifically, that an inmate is still conscious after sedatives are injected — before filing a First Amendment appeal. “We’re pleased, and we think this is the correct result,” Gillette said of Fogel’s ruling. Defense attorney Steven Lubliner of Petaluma plans to seek a review in the 9th U.S. Circuit Court of Appeals. He tried to convince the judge that the state wanted to chemically mask the excruciating pain that condemned prisoners endure during lethal injections. “I’m surprised at the brevity of the order and its failure to engage in any Ninth Circuit opinions or cases which make clear that development of execution policies requires a vigorous protection of First Amendment rights,” Lubliner said Friday. Beardslee was convicted of the drug-related slayings of two women in San Mateo County 20 years ago. The case is Beardslee v. Jeanne Woodford, CV 04-5381.

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