---------as reported on KTAR.com---------
by Associated Press (December 5th, 2011 @ 9:09pm)
PHOENIX - Lawyers for Arizona death-row prisoners said Monday the state is using unvetted personnel to administer lethal injections under a sheet, away from witnesses' view, despite promises to a judge that those practices would stop.
U.S. District Judge Neil Wake, who signed off on the constitutionality of the state's step-by-step execution protocol two years ago, is now being asked to impose restrictions because of how the state is actually implementing key provisions.
Wake ruled in 2009 that lawyers in a different case hadn't shown that inmates' constitutional protections against cruel and unusual punishment were substantially jeopardized by execution processes that the attorneys argued might cause pain or other suffering.
During opening statements in the new trial that began Monday, inmate attorney Cary Sandman told Wake that previous assurances by Corrections Director Charles Ryan that the state would follow its protocol have proved unreliable.
With promises made and not kept, ``you've misled this court, the parties and the public,'' said Sandman, a federal public defender.
Ryan, who was the first witness to testify, acknowledged that his department failed to conduct required criminal background checks of execution team personnel. The failure, he said, was not intentional.
But Ryan said it's hard to recruit qualified injection-team personnel so he used his discretion to select a member, a department sergeant who was a military medical corpsman years ago but who doesn't have current experience in starting intravenous feeds.
The protocol requires that injection-team members have that experience as a primary part of their current job responsibilities.
Similarly, Ryan also testified that he used his discretion to let a physician who has been the injection team's leader for the past five executions to decide to use groin-area injections instead of injections in a limb such as an arm, as called for in the protocol.
Arizona, like many other execution states, previously used injections in inmates' arms, but the doctor said groin-area injections are more reliable, Ryan said.
And it's enough that the warden in the injection room could see the injections and alert the injection team to any problems, while a sheet draped over most of the inmate's body blocked it from the view of witnesses in an adjacent room, Ryan said.
Ryan said he didn't intentionally mislead Wake in a 2009 affidavit in which Ryan said the state would comply with the written protocol's terms.
The corrections director said the protocol itself authorized him to alter implementation. ``So I don't see that as requiring a need to advise the court that discretion may in fact be used,'' he said.
Wake did not comment during the beginning of the trial on the argument by the attorneys for the inmates that he'd been misled when he considered the protocol in 2009.
Initial testimony also focused on the state's acquisition of a formerly widely used but federally unapproved execution drug from a seller in Great Britain.
Inmate attorney Dale Baich said the state's willingness to skirt accepted procedures in getting the drug ``does not give confidence that executions will be carried out in a humane and safe manner.''
Assistant Attorney General Jeff Zick said in his opening statement that all the allegations hadn't resulted in any proof that inmates were actually subjected to substantial risks, whether from drugs or procedures used.
``Some deviations were intentional, some known and some were simply done by oversight,'' the government lawyer said.
During cross-examination by Zick, Ryan testified that no inmates complained of pain or discomfort before the past five executions conducted since Wake's 2009 ruling.
In fact, the director said, the inmates appeared comforted by the injection team's leader explanations of what he was doing. ``I believe he instilled confidence in the inmates who were to be executed,'' Ryan said.
The identity of the injection team leader and others participating in executions are confidential under state law.
Sandman asked Wake to order the state to either follow the protocol or provide details on deviations before an execution is conducted. He also said the court should appoint a monitor to ensure compliance and that the state should be barred from acquiring unapproved execution drugs.
The trial is expected to continue Wednesday and Thursday, and Wake said he try to rule in the next week or two.