Death row appeals backed

Justices allow more challenges to lethal injection and new claims of innocence


The Supreme Court broadened the legal path yesterday for death row inmates to challenge lethal injection as an inhumane method of execution. Its ruling could prompt a wave of appeals from condemned prisoners, but the court gave no hint that those arguments would succeed.

In Maryland, the issue already is playing out in the case of Vernon Lee Evans Jr., who was convicted in a 1983 double murder intended to silence witnesses in a drug trial. The state's highest court in February halted Evans' scheduled execution to hear his challenge to lethal injection procedures, and a related appeal is pending in Baltimore's federal court.

With other challenges across the country, the Evans case could push the broader question of whether lethal injection, as currently practiced, violates the constitutional ban on cruel and unusual punishment. But the nation's high court steered clear of that question yesterday, noting at one point that the appeal from Florida inmate Clarence E. Hill still "appears to leave the state free to use an alternative lethal injection procedure."

Ruling in another death penalty case yesterday, the Supreme Court also opened the door to more appeals based on claims of innocence in granting a new hearing to a Tennessee prisoner who said DNA evidence could clear him in the 1985 rape and murder of a neighbor. One lower-court judge had described the case as "a real-life murder mystery, an authentic `who-done-it' where the wrong man may be executed."

Together, the two rulings reflected the court's continuing concern about how capital punishment is administered. The cases lacked the sweep of recent decisions that ended executions for juveniles and for mentally retarded people, but they were the first key capital punishment decisions since the retirement of Justice Sandra Day O'Connor and were viewed as indicators of how the new court would address the issue.

Kennedy's role

Justice Anthony M. Kennedy, who has emerged as the court's swing vote on death penalty issues, wrote both majority opinions. The court's decision in the lethal injection case was unanimous, but it split 5-3 in the Tennessee case involving new innocence claims, with Chief Justice John G. Roberts Jr. writing a sharp dissent joined by conservative Justices Antonin Scalia and Clarence Thomas.

Justice Samuel A. Alito Jr. joined the court after it heard arguments in the Tennessee case and did not participate in the decision.

In the lethal injection case, the court stepped in to settle a technical - but potentially crucial - procedural matter. The justices agreed that Hill could file a new, last-minute civil rights claim challenging his method of execution in federal court, even though he had exhausted other appeals.

The decision could force states to adopt new, more uniform methods of execution. It also could push the Supreme Court to weigh in on the merits of lethal injection challenges.

Carolyn M. Snurkowski, the assistant deputy attorney general from Florida who argued the case before the Supreme Court, said yesterday that she expected to see more inmates bring challenges against lethal injection procedures. But she said she was confident the claims would not succeed in the lower courts.

Evans' appeal

The decision was not expected to have any immediate implications for Maryland death penalty cases, including the challenges filed by Evans. Defense attorney Gary E. Proctor said that unlike in Hill's case, capital defenders in Maryland have brought civil rights challenges to lethal injection procedures without a procedural fight from prosecutors.

"To this point in time anyway ... the [Maryland attorney general] has not challenged us filing in that manner. They've just disputed the content of our petition rather than the way in which it was filed," Proctor said. He noted that the Hill case had offered the Supreme Court the chance to "firmly slam the door on this manner of challenging executions, and they chose not to do it."

"Quite the contrary, they left it open, and it sounds like they're going to revisit it another day," Proctor said. "So from my point of view, it's not a neutral decision."

As in appeals elsewhere, Evans' attorneys have challenged Maryland's lethal injection system as cruel and unusual. They also argued that Evans is at particular risk of a painful death because years of heroin abuse have so damaged his veins that they would not support the flow of chemicals used in executions.

The federal government and 37 states that allow the death penalty all use a similar chemical mix to administer lethal injections. Condemned prisoners are injected with three active drugs: an anesthetic to numb the inmate, pancuronium bromide to paralyze the muscles and potassium chloride to stop the heart.

A study published last year reported that some condemned men have experienced intense pain from the drugs that contracted the muscles of their lungs and heart because they did not receive enough anesthetic.

`Innocence standard'

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