By Curt Woodward
Associated Press Writer
OLYMPIA — Darold Stenson of Sequim testified from his cell on death row in Walla Walla on Thursday against Washington state’s lethal injection method.
Testimony was heard on the first day of the civil trial in Thurston County Superior Court from Stenson, convicted of fatally shooting his wife and business partner, and two other death row inmates.
The lawsuit doesn’t seek to end lethal injections in Washington state. Instead, it argues the state’s procedures should be changed to give stronger assurances that an executed inmate won’t be subjected to improper suffering and pain.
The case is a combined lawsuit on behalf of Stenson; Cal Coburn Brown, convicted of torturing and killing a Burien woman; and Jonathan Gentry, convicted of killing a 12-year-old girl in Kitsap County.
In afternoon testimony, Stenson testified via videoconference from the state penitentiary in Walla Walla about difficulty that medical staff have accessing his veins during regular blood draws related to medical treatment for diabetes.
“For well over a week, my whole arm would turn an off-yellow color and would be black and blue,” Stenson said.
Stenson’s attorneys argue that the difficulty of accessing Stenson’s veins with needles raises too high a risk that the state’s execution team would connect the lethal injection needle improperly.
The state rejects the argument that Stenson’s health conditions make the procedure unconstitutional.
Constitutional tests
State lawyers say the Department of Corrections’ methods withstand constitutional tests because they’re substantially similar to procedures in Kentucky, whose system was upheld last year by the U.S. Supreme Court.
Washington, like roughly three dozen states, uses a combination of three drugs to knock out, paralyze and kill a condemned inmate. Washington death row inmates may opt for hanging instead. The last execution in Washington was the lethal injection death of James Elledge in 2001.
The trial, which began Thursday, is expected to last several days.
In opening statements, the inmates’ attorneys said there were several specific shortcomings in the state’s lethal injection procedure: No supervision by doctors or nurses, inadequate training and rehearsals for the execution team and lack of medical qualifications for everyone involved.
Lack of team
Sherilyn Peterson, one of Stenson’s attorneys, focused particularly on the lack of an execution team as evidence the state can’t show it is able to carry out a constitutionally acceptable lethal injection.
Members of the state’s previous execution team resigned in March, worried their identities could be exposed through the court’s examination of their qualifications and experience. A substitute team has not been assembled.
“You can promise anything. You can put anything in writing,” Peterson said. “The question is, can you do it?”
Inmates argue that more humane alternatives exist — using a larger dose of sedative to kill an inmate, rather than adding paralytic and heart-stopping drugs or having a doctor or nurse involved.
Presently, a doctor is employed only to certify an executed person is dead.
Assistant State Attorney General Sara Olson, the state’s lead lawyer in the case, argued that Washington state’s existing policy gives proper assurances that a lethal injection will be carried out as required under the federal and state constitutions.
No proof needed
Under the U.S. Supreme Court ruling on Kentucky’s lethal injection method, Washington state doesn’t need to prove its procedures will be followed in a perfect manner that eliminates all risk of pain, Olson said.
Rather, the inmates must prove the state’s procedures represent a substantial, intolerable risk of harm — and since Washington state’s policies closely mirror Kentucky’s, the plaintiffs’ arguments don’t clear that hurdle, the state said.
It’s not enough to argue that Washington state’s procedure could be administered incorrectly, and the plaintiffs’ arguments incorrectly presume that the state intends to administer the procedure haphazardly, Olson said.
Inmate unconscious
On the important question of whether an inmate is fully unconscious during Washington’s lethal injections, the state’s procedure calls for the prison superintendent to closely observe the condemned inmate for signs of consciousness, and allows the superintendent to order a second dose of sedative, Olson said.
The idea that an inmate would be somehow conscious despite those safeguards presumes an inmate would pretend to be asleep and not warn anyone, Olson said.
But the inmates’ lawyers argue that an incomplete dose of the sedative could cause an inmate to appear unconscious while still feeling pain, which could be excruciating when the final two drugs are injected.
The state also rejects the plaintiffs’ argument that the Washington Constitution offers a stronger protection against cruel punishment than the U.S. Constitution’s Eighth Amendment.
