Death penalty procedures see challenge in federal court

In Arizona's death chamber in the minutes just before an execution, inmates lay strapped to a table with a white sheet pulled up to their necks.

Witnesses who are there partially to ensure that the inmates don't experience unnecessary pain don't see anything leading up to that point - it's just a man on a table about to be put to death with an injection they can't see.

The veiled process and other procedures followed by the Arizona Department of Corrections are now being challenged in federal court. U.S. District Judge Neil Wake scheduled a trial in the matter for Oct. 11 and can rule that the department is violating inmates' constitutional rights by the way it conducts executions, or find that the department has acted properly.

"All you see is a head sticking out from a sheet, and a guy sort of looks around, maybe makes a last statement and then closes his eyes," said Dale Baich, a federal public defender who has represented the most recent inmates executed in Arizona. "We want more transparency in the process, and that's what we hope comes of this litigation."

Baich is arguing that the corrections department is violating inmates' constitutional rights and deviating from execution protocol in five ways. Among them: using a new execution drug, using the groin area as the injection site and failing to leave injections uncovered during executions.

He compared Arizona's sheet-cloaked process to some other states' procedures, during which witnesses see every step, including injections, he said.

Assistant Attorney General Kent Cattani, who will be arguing against Baich at the October trial, rejected his arguments and said the corrections officials themselves dictate protocol and can change it anytime they see fit.

"An inmate can challenge a change but they have to show there's a high likelihood of significant pain or suffering because of the change," he said.

Cattani said he sees no reason why execution witnesses should be able to view each step in the process. "I'm not sure I understand why there would be a need for insertion of the femoral vein (in the groin area) to be witnessed," Cattani said. "All of these executions have been publicly witnessed, the inmate has been conscious, the inmate is perfectly capable of explaining that he has suffered severe pain, and that simply has not been the case."

Cattani said for an execution to violate an inmate's constitutional rights "there has to be more than a chance that something could go wrong."

"Here we have the Department of Corrections carrying out very capably this serious responsibility, and it's not one they take lightly," he said.

Corrections Director Charles Ryan declined to comment through department spokesman Bill Lamoreaux.