Court clears way for executionBy GWEN FLORIO, Great Falls Tribune
HELENA - David Dawson should be executed as scheduled in 16 days, the Montana Supreme Court ordered Tuesday
"Mr. Dawson's execution date remains in full force and effect," the court said in dismissing an attempt by civil liberty and faith groups to delay Dawson's killing, even though Dawson has asked repeatedly to be executed.
Those groups contend that lethal injection could cause an "excruciating" death and asked the court to decide whether that method could be so painful as to violate the Eighth Amendment prohibition against cruel and unusual punishment.
Tuesday, a day after the court's deadline for responses in the case, the justices found Dawson's wish to be executed paramount.
"We will not 'undo' years of efforts by Mr. Dawson in attempting to stop further delays in the imposition of his death sentence," the court said. Dawson has asked repeatedly to be executed.
"I'm somewhat disappointed but not particularly surprised," said Ron Waterman, the Helena attorney who filed the petition on behalf of the groups. He said they're evaluating their next step.
Meanwhile, Attorney General Mike McGrath said that "it has been the state's position all along that it's the state's plan to carry out the court's order (of a death sentence) on Aug. 11."
Montana State Prison Warden Mike Mahoney hand-delivered a copy of the order to Dawson late Tuesday afternoon, said Corrections Department spokesman Bob Anez.
Dawson, who strangled three members of a family in 1986 in a Billings motel, asked about the effects of the decision.
"As of today, Aug. 11 is still a go," Mahoney told him.
Anez said the court's action doesn't change preparations by the Corrections Department, which is in the process of rehearsing procedures that will be followed during the execution.
Although five other justices signed Tuesday's opinion by Chief Justice Karla Gray, a separate opinion raised the specter of further wrangling over the issue.
The order "ignores the elephant in the room," wrote Justice James C. Nelson, in an opinion signed by Justice Patricia Cotter.
Nelson wrote that he agreed that Dawson's wishes should be respected, but added, "this issue is simply not going to go away." Noting that federal and state courts around the country are grappling with the constitutionality of lethal injection, he wrote:
"Montana's courts and Legislature can be pro-active in this issue, or we can wait for a federal court to instruct us what to do and what not to do."
The American Civil Liberties Union, the Montana Catholic Conference, the Montana Association of Churches, the Montana Association of Criminal Defense Lawyers, members of Murder Victims Families for Reconciliation, several legislators and two former judges had tried to stop the execution until the court rendered an opinion on the constitutionality of lethal injection.
In his concurrent opinion Tuesday, Nelson dealt both with that issue, and the court's finding that Dawson's wishes should be a deciding factor.
"The manner of execution is not purely the capital defendant's issue," he wrote. "It is an issue that is owned by every adult in this State."
Nelson also wrote that the public has a stake in Montana's constitutional requirement - more stringent than that of the U.S. Constitution - that executions be humane.
"I think the opinion certainly invites us to re-file," Waterman said. "I think Justice Nelson was looking for someone to do this sooner rather than later, rather than waiting until we have another execution looming."
Three other Montana inmates face death sentences, but those executions have not been scheduled.
On Tuesday morning, just hours before the court issued its order, Waterman filed a statement by an anesthesiologist detailing potential problems with lethal injection.
"Montana's lethal injection protocol creates medically unacceptable risks of inflicting excruciating pain and suffering on inmates while the lethal injection is administered," Columbia University physician Mark Heath wrote in that motion. "There exists an unacceptable likelihood that a prisoner will have some level of consciousness during his execution."
Heath's opinion, rendered moot by the court's decision, contradicted an affidavit filed a day earlier by the Attorney General's Office, in which Massachusetts anesthesiologist Mark Dershwitz said Montana's lethal injection procedures posed an "exceedingly small" risk of pain. Both anesthesiologists have testified in other court cases on lethal injection.
Source : Great Falls Tribune
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