Judge wants second revision to state's death penalty rules

ST. LOUIS -- A federal judge ruled Tuesday that Missouri officials must revise the state's death penalty procedures to better ensure that the three-drug execution method does not violate the constitutional guarantee against cruel and unusual punishment.

U.S. District Judge Fernando Gaitan in Kansas City gave the state until Oct. 27 to submit a new protocol for executing inmates.

This will be the second revision the state has given Gaitan since he ordered in June that the Missouri Department of Corrections make sweeping changes to its execution protocol.

At issue is how painful execution from lethal injection can be. If a cocktail of drugs is not given correctly, an inmate could be in "torturous" pain but paralyzed and unable to show it, Gaitan ruled.

In his ruling Tuesday, Gaitan laid out eight provisions the state must meet to make its execution protocol acceptable. He pointed out the state has already met some of them.

Missouri Attorney General Jay Nixon's office was reviewing Gaitan's ruling and would not comment, said spokesman Scott Holste. Department of Corrections spokesman Brian Hauswirth also said the department was reviewing the ruling and its legal options and will work with the attorney general's office on how best to continue.

"The department has said and continues to say that our execution procedure is humane and constitutional," Hauswirth said. "We believe the court's order imposes requirements that go beyond what is necessary for an execution to comply with constitutional standards."

The case arose when convicted murderer Michael Taylor sued the state, claiming his scheduled execution in February would be unconstitutionally cruel.

Taylor's attorney Eric Berger also would not comment because the case is still pending.

Gaitan ruled in favor of the state on one point, backtracking on his previous order for Missouri to hire a board-certified anesthesiologist to mix the lethal drugs and to administer or monitor the execution process.

State officials said they couldn't find an anesthesiologist for the job. Instead, the state suggested hiring a specially trained physician to oversee the process.

Gaitan said in the ruling he would accept that plan, but that the state must select a physician in good standing with the Missouri licensing board and who has not faced any disciplinary action from the board.

Gaitan specifically ruled that the state could not use its previous medical expert, Jefferson City surgeon Alan Doerhoff. Gaitan said Doerhoff -- identified as "John Doe No. 1" in court papers -- could not participate "in any manner, at any level, in the State of Missouri's lethal injection process."

Doerhoff stoked Gaitan's concerns over Missouri's executions when he acknowledged in court he is dyslexic, but still oversaw executions and determined dosages of drugs used for lethal injection.

Doerhoff's identity is kept secret in court documents, but he has since acknowledged he assisted in dozens of executions.

In July, Doerhoff told The Associated Press he felt obligated to help the state. He also denied he is dyslexic.