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Killer’s bid for last-minute reprieve stretches into evening, judge to rule Monday

A hearing that started at 1 this afternoon stretched into the evening tonight, as condemned killer Paul Ezra Rhoades pressed for a last-minute reprieve from his execution, scheduled for next Friday. The Associated Press reports that after the arguments, U.S. Magistrate Judge Ronald Bush said he'll try to decide by Monday whether to postpone the execution. The judge said Thursday night he was concerned that the Idaho Department of Correction seemed to be “playing catch-up” when it came to planning for Rhoades' execution. Rhoades, who was convicted of murdering three people in 1987 and sentenced to die for two of the murders, has sued over Idaho's lethal injection protocol. He contends the state's policy doesn't include enough safeguards to ensure that he is adequately anesthetized and doesn't experience excruciating pain during the execution. Idaho attorneys counter that their protocol is similar to methods that have been upheld by the courts in other states. Click below for a full report from AP reporter Rebecca Boone.


US judge plans Monday ruling on Idaho execution
By REBECCA BOONE, Associated Press

BOISE, Idaho (AP) — A federal judge told attorneys for a condemned Idaho inmate that he'll try to decide by Monday whether to postpone an execution scheduled to take place in one week.

U.S. Magistrate Judge Ronald Bush said Thursday night that he was concerned that the Idaho Department of Correction seemed to be “playing catch-up” when it came to planning for Paul Ezra Rhoades' execution, set for Nov. 18. Rhoades, who was convicted of murdering three people in 1987 and sentenced to die for two of the murders, has sued over Idaho's lethal injection protocol.

Rhoades contends the state's policy doesn't include enough safeguards to ensure that he is adequately anesthetized and he won't experience excruciating pain during the execution. Idaho attorneys counter that their protocol is similar to methods that have been upheld by the courts in other states.

Idaho's newly revised protocol — approved by the state just a couple weeks ago — requires that the condemned prisoner be administered an anesthetic drug first so he is rendered fully unconscious. Then, the execution team will administer a paralytic agent, preventing the inmate from moving or even drawing breath, followed by potassium chloride, a drug that will stop the heart.

Rhoades' attorneys say that if the anesthetic isn't given properly, Rhoades will be conscious but unable to signal his awareness once the paralytic kicks in. The third drug, potassium chloride, causes extreme agony, they said.

To prove the point, Rhoades' attorneys called on Dr. Mark Heath, a practicing anesthesiologist and associate professor at Columbia University who is an expert in lethal injection. Heath said that potassium chloride causes every nerve that it comes in contact with to signal pain to the brain, so every nerve in the pathway between the IV and the heart would be firing in pain at once.

It wouldn't be just one type of pain, Heath said: Nerves that signal burning sensations would tell the brain they are burning. Nerves that signal crushing sensations would likewise activate, along with nerves signaling shearing, breaking, cutting and chemical pain sensations, he said.

Heath also testified that anesthetics can wear off quickly, sometimes in a matter of seconds, and it can be difficult, if not impossible, to determine if someone is deeply unconscious once they are given a paralytic drug. He said that in an operating room, anesthesiologists use lots of different, sensitive monitors to help determine whether a patient is aware. Rhoades' attorneys noted that such equipment wouldn't be available in Idaho's execution chamber.

But Deputy Idaho Attorney General Krista Howard told the judge that a federal court ruling out of Kentucky considered all those factors and found that a three-drug protocol markedly similar to Idaho's was adequate and effective in protecting an inmate's right to be free from cruel and unusual punishment. The protocol doesn't have to guarantee that problems won't happen, the state noted — only that the possibility of problems have been accounted for in state policies.

Idaho Bureau of Prison Deputy Chief Jeff Zmuda said the members of Idaho's execution and medical teams all have at least one year of experience doing basically the same procedures they'll be carrying out in the execution chamber — including inserting IVs, checking for consciousness and administering medications.

Postponing Rhoades' execution isn't in the best interest of the state, nor is it in the best interests of the family members of his victims, Howard told the court.

But Loewy contended a stay of execution was in order, noting that both sides agreed that if the initial drug was administered incorrectly, the rest of the execution would cause agony.

Loewy contended that in the states that have a three-drug protocol similar to Idaho's, 12.5 percent of the executions were obviously botched. That percentage could be higher, he said, in cases where the paralytic was administered correctly, because a paralyzed inmate would be unable to indicate the level of pain they were feeling.

In states that use high doses of an anesthetic drug alone to execute prisoners, the chance of a condemned inmate feeling pain is zero, he said.

“I have a state correction system that to some degree looks like it's playing catch-up,” Bush said. “But I've got to consider the state's interest in seeing its judgment enforced.”

The judge compared the state's preparations to that of a producer getting ready to open a show on Broadway, who realizes during the dress rehearsal that the actors need more time to practice. “I worry about that,” he said.

The judge told both sides he'd do all he could to get a ruling out by the start of next week.

“I've got a lot of mulling over I need to do,” he said before ending the hearing shortly before 8 p.m.

Rhoades was given two death sentences for the sexual assault and murder of Idaho Falls teacher Susan Michelbacher, 34, whose bullet-ridden body was found in March 1987. He also was given two death sentences for the first-degree murder and kidnapping of Stacy Dawn Baldwin, 21, a Blackfoot convenience store clerk who was shot to death in February 1987.

Rhoades was also sentenced to life in prison without the possibility of parole after pleading guilty to the March 1987 shooting death of Nolan Haddon, 20, a Blackfoot man who worked at an Idaho Falls convenience store.


Copyright 2011 The Associated Press.


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Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

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