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Toobin: 'It's harder than you think to execute somebody'

CNN senior legal analyst Jeffrey Toobin



On the Scene
Capital Punishment
Jeffrey Toobin

NEW YORK (CNN) -- California death row inmate Michael Angelo Morales received a temporary reprieve before his scheduled execution Tuesday when two anesthesiologists refused to participate, citing ethical concerns.

The execution of Morales, convicted of raping and murdering a 17-year-old girl in the early 1980s, has been rescheduled for Tuesday evening.

CNN anchor Soledad O'Brien discussed the legal issues Tuesday with CNN senior legal analyst Jeffrey Toobin.

O'BRIEN: Have you ever heard of anything like this before?

TOOBIN: Well, this is an incredible drama that's been happening. And, you know, it's all part of sort of the death penalty story in the United States, which has been this search for a humane method of execution. That's why we had the electric chair, the gas chamber, lethal injection. But problems have arisen with all of them.

O'BRIEN: The anesthesiologists, the two who had been brought in to participate, said that they had these ethical concerns. I was sort of surprised that they would pick these two guys to come in and do it in the first place since clearly they have a moral problem here.

TOOBIN: Absolutely. Well, what happened was the District Court judge has been presented with evidence that particularly one of the drugs used in the three-drug cocktail is something -- this drug called Pavulon -- which is illegal to use in putting animals to sleep because it's supposedly painful for the animals.

Now defense lawyers are saying, "Look, if you can't use it against animals, you can't use it against a human being." What the judge did was, he said, "OK, I'll approve the execution going forward, but I want an anesthesiologist to be there to make sure there's no prolonged suffering, that he doesn't wake back up."

O'BRIEN: So they were concerned, like, wow, if there's prolonged suffering, suddenly I'm in a position where I might have to revive a guy whom we're putting to death?

TOOBIN: Exactly. That's why the anesthesiologists said, "You know, we will participate, just monitoring his death, but we are not going to revive someone. We are not going to be part of a medical procedure that's a violation of the Hippocratic oath."

O'BRIEN: So what happens now? I mean, they said that they're going to just heavily sedate him, essentially?

TOOBIN: Well, what's supposed to happen -- and the legal maneuvering is continuing as we speak -- is at 7:30 tonight, they're going to try to execute Morales again, but only use one drug, not the three drugs. ... But again this just underlines how murky this area is. And, you know, it's harder than you think to execute somebody.

O'BRIEN: Any indication that this guy will not be put to death? I mean, no one was arguing the merits of the case. He killed and was convicted of killing a 17-year-old girl.

TOOBIN: Particularly horrendous crime.

O'BRIEN: I mean, horrific. So he's going to be put to death at some point. It's just sort of really the wrangling over the moral and legal issues behind how you kill people in this country.

TOOBIN: But that's a significant thing. And if this entire method is struck down, it could be years. Again, I mean, this is a guy whose crime was in '81. The conviction was in '83. This has already been going on for decades. California has 600 people on death row. They're executing people at less than once a year. So if this is delayed longer than today, it could be months, it could be more years. So, yes, presumably, he will be executed at some point, but [it's] by no means clear when.

O'BRIEN: What I don't understand is this drug, Pavulon, which as you point out, they don't even allow it used in animals ... because it's supposed to be so painful for animals. ... Aren't there other drugs where you could so heavily sedate someone that they would essentially just sort of slip into death? I mean, aren't there just other medications?

TOOBIN: You would think. You would think. But ... it is harder than you think. The Supreme Court is probably going to deal with this issue shortly because lots of cases from different states, from Tennessee, from California, are challenging the death penalty protocol.

I was reading the briefs in the cases, and you would be surprised how difficult it is, at least based on the science that's presented in court ... that it's harder to execute someone painlessly than would seem likely.

O'BRIEN: It's so interesting when you hear cases like this -- not necessarily this case, but where the family members sort of think, "Our child died in a horrible, painful way. There was not one person who was concerned about her pain, the victim's pain. And now we're all debating the criminal's pain, and no one's debating whether or not he did it."

TOOBIN: And the victim's family was there last night, so they went through the emotionally wrenching experience of going to San Quentin, getting ready for this, you know, death that was apparently going to proceed. Now they have to leave again. I mean, you know, the cost to them is significant.

O'BRIEN: And it's got to be weird for them to think, boy, a lot of effort [is] being put into the ... concerns about the criminal's pain, as they put him to death, when not much thought was put into the victim's death. I would imagine, right?

TOOBIN: Indeed. It's an ugly scenario.

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