By Paula Reed Ward
Pittsburgh Post-Gazette
YORK COUNTY — An attorney for a York County man facing possible execution this month has asked a Pennsylvania appellate court to stop the state from carrying out the lethal injection, saying that the drugs to be used in the process violate state law.
Gov. Tom Corbett signed an execution warrant for Hubert Michael on July 24, setting his date of death as Sept. 22. The 3rd U.S. Circuit Court of Appeals issued a stay in Michael’s case on an unrelated issue Aug. 15 but indicated that it would remain in effect only while his petition for a hearing before a full panel of judges was pending.
On Tuesday, attorneys for Michael filed a motion for a preliminary injunction with the state Commonwealth Court listing Michael, as well as three other death row inmates as petitioners, and asking that any executions in Pennsylvania be put on hold because the state Department of Corrections will not follow the law in carrying out the procedure.
“The DOC’s chosen drug combination will not act as quickly as that required by the legislature, is not used in clinical medical practice, and cannot assure an execution that is humane, as the Pennsylvania legislature understood the term,” the brief said. “Absent an injunction, DOC will violate the terms of the legislature’s mandate and usurp legislative authority.”
A spokeswoman for the DOC said she could not comment on pending litigation.
Michael, 58, was found guilty of first-degree murder and kidnapping by a jury in March 1995 and sentenced to death.
He was accused of kidnapping 16-year-old Trista Eng in July 1993 as the girl walked to work. At the time, Michael was free on bail on a rape case from Lancaster County. He is now being held on Pennsylvania’s death row at the State Correctional Institution at Greene.
In 1990, Pennsylvania’s Legislature approved the use of lethal injection over electrocution as the chosen method for execution and in November of that year, the bill authorizing a specific drug cocktail for the process was signed into law.
That cocktail, according to the motion, included an ultra-short-acting barbiturate as the first drug given.
“As recognized by the general assembly, the first drug in the execution protocol is of paramount importance in ensuring that Mr. Michael does not experience impermissible pain and suffering,” the motion said. “Indeed, recent experimentation with new first drugs in other states has led to torturous executions.”
But in 2012, the DOC adopted a new drug protocol, replacing the ultra-short-acting barbiturate with pentobarbital, which is a short- and intermediate-acting barbiturate. The second drug in the cocktail to be used is pancuronium bromide, a chemical paralytic agent, and the third is potassium chloride, an electrolyte.
According to the brief, the Department of Corrections adopted the new execution protocol “in secret, without public notice, hearing or comment.”
Pennsylvania, like other states across the country, had to change its protocol because the original ultra-short-acting barbiturate to be used, sodium thiopental, is no longer available in the United States.
But in those other states, the motion continues, the legislatures changed their laws reflecting that.
The execution warrant for Michael, the motion notes, said that it must be carried out “in the manner prescribed by the Act of the General Assembly of the Commonwealth,” which means the original drug cocktail.
Among the issues the Commonwealth Court must consider in deciding whether to issue an injunction is whether it is necessary to prevent immediate and irreparable harm; whether the party making the request is likely to prevail; and whether greater injury would come from refusing it than granting it.