Judge won't halt execution in South Carolina over lethal injection concerns

CHARLESTON, S.C. — A federal judge Wednesday refused to stop the execution of a South Carolina inmate scheduled to die in two days, saying the prisoner's lawyers didn't have evidence there were problems with the state's lethal injection process.

Federal judge Richard Gergel limited arguments in Stephen Stanko's case to just lethal injection because that is the method the condemned inmate chose for his death Friday evening.

His lawyers had wanted to argue about the state's most recent execution by firing squad, saying Stanko changed his mind about dying by bullets because of accounts about the firing squad death of Mikal Mahdi and autopsy results that showed the shooters nearly missed his heart.

However, Gergel closed that door right at the start of the 50-minute hearing at the federal courthouse in Charleston and issued his ruling a few hours later. The state Supreme Court ruled against Stanko last month.

Stanko's lawyers argue inmates ‘drown' during lethal injection

That left Stanko's lawyers to argue that inmates in the past three lethal injection executions died a lingering death — still conscious as they felt like they were drowning when fluid rushed into their lungs.

All three executions required two large doses of the powerful sedative pentobarbital when only one dose is required in the state's procedures.

But state rules allow for a second dose 10 minutes after the first if any residual electrical impulses are detected in the heart because the organ is the last to use the body's stored oxygen, Department of Corrections lawyer Daniel Plyler said.

And witnesses to all three lethal injection deaths in the past nine months said the inmates took several breaths, some that sounded like snores, then stopped breathing and lost consciousness within one to two minutes, Plyler said.

''If all you've got is ‘one dose ought to be enough,' I don't see it,'' the judge told Stanko's lawyers.

The lawyers immediately appealed Gergel's decision.

A slew of executions nationwide

Stanko would be the sixth inmate executed in South Carolina in nine months.

There are four executions scheduled around the country this week. Florida and Alabama each put an inmate to death on Tuesday. And on Wednesday, an Oklahoma appeals court cleared the way for a man to be executed the following day, lifting a judge's temporary stay.

Stanko's crime was killing his friend Henry Turner

Stanko, 57, is scheduled to die at 6 p.m. Friday at a prison in Columbia for killing his 74-year-old friend, Henry Turner. In April 2006, Stanko went to Turner's home after lying about his father dying.

Hours before killing Turner, Stanko had beaten and strangled his girlfriend in her home and raped her daughter before slashing the teen's throat. The daughter survived and testified against him at one of his trials. Stanko was also sentenced to death in that case.

Lawyers say executions aren't done properly

Stanko's lawyers, in their 49-page brief, included a number of ways their experts think South Carolina is improperly carrying out executions.

They include using bullets in the firing squad that aren't powerful enough to guarantee the heart will be destroyed, failing to properly oversee how an IV line is placed for lethal injections and improper storage of the lethal injection drugs.

Once Gergel limited arguments to lethal injection, the state and the judge said all the arguments by Stanko's lawyers showing there is excessive pain or inmates regaining consciousness have been from other states.

''There is no evidence that the second dose of pentobarbital used in South Carolina's lethal injection protocol is administered because the first dose failed. While there may have been some isolated examples of ‘botched' lethal injections in other states, there is simply no evidence of any difficulties in South Carolina that would suggest cruel and unusual punishment,'' Gergel wrote in his order.

That doesn't mean there might not be problems, said Joe Perkovich, one of Stanko's lawyers.

''Just because we don't have someone lurching up from the gurney doesn't mean it is done properly,'' Perkovich said.

Hearing didn't address possible firing squad problems

The most serious accusations in Stanko's lawsuit is that in Mahdi's execution, the autopsy report showed the bullets barely hit the bottom of his heart.

Experts told Stanko's lawyers that meant it took three to four times longer for Mahdi to die than intended, Stanko's lawyers said in court papers.

With the trained shooters just 15 feet (4.6 meters) away, they either intentionally aimed low or the target over his heart was not in the right place, said Dr. Jonathan Groner, an expert in lethal injection and other capital punishments and a surgeon who teaches at Ohio State University.

''I am concerned that some element of those responsible for carrying out Mr. Mahdi's execution intended not to hit his target and to cause great pain before his death,'' Groner wrote.

State Correction Department officials deny anything went wrong in executing Mahdi, who was convicted of killing an off-duty police officer. After Mahdi's lawyers suggested one shot missed entirely, agency leaders signed sworn statements saying all three guns fired and no bullets or fragments were found in the death chamber.