Judge: Executioners Can Be Questioned In Lethal Injection Lawsuit

LOUISVILLE, Ky. (AP) - Kentucky's executioners can be questioned about their training and qualifications by attorneys for a death row inmate challenging the use of lethal injection.

Under the ruling, issued Friday by U.S. District Judge Karen Caldwell in Lexington, the execution team members could remain anonymous, but their background, training and experience could be explored.

The decision came in the case of Brian Keith Moore, who is awaiting execution for a 1979 slaying in Louisville. Moore is challenging the use of lethal injection on the grounds that the drugs used will cause him excruciating pain in violation of the constitutional ban on cruel and unusual punishment.

Caldwell rejected several of Moore's requests, including an injunction stopping him from being executed. Caldwell said since no execution date is set and Moore has other legal challenges pending, an injunction is unnecessary.

Jeff Middendorf, general counsel to the Kentucky Justice and Public Safety Cabinet, said Caldwell was correct in rejecting many of Moore's requests and the cabinet is hopeful she will reverse the decision to allow questioning of the execution team.

"It remains the DOC's position, supported by the unanimous decision of the Kentucky Supreme Court, that Kentucky's lethal injection protocol is constitutionally sound," Middendorf said.

Moore's attorney, public defender David Barron, sought to quiz the executioners after similar depositions in a Missouri case revealed that the wrong doses of chemicals were used on a regular basis and the doctor mixing the drugs had been disciplined by the state medical board and sued for malpractice. Barron contended that the only information he was able to gather on the execution team before the last scheduled death sentence was that one person was a phlebotomist and the other an EMT.

Barron did not return phone messages seeking comment on Friday. Lawyers for the Kentucky Attorney General's Office fought allowing the questioning, saying it could reveal the identities of the team members, opening them up to harassment and that the information was available elsewhere.

Moore, 49, was convicted and sentenced to death for the kidnapping and slaying of Virgil Harris of Louisville.

Meanwhile, Moore is awaiting DNA testing on old evidence in his case. Moore, the first Kentucky Death Row inmate to have been granted such testing, claims the evidence will point to another man, who has since died, as Harris' killer.

In April 2006, Attorney General Greg Stumbo sent a letter to Gov. Ernie Fletcher requesting an execution date for Moore, but Fletcher never signed a warrant or set a date.

Four other death row inmates have sought to join Moore's challenge in federal court, with Caldwell weighing the requests of three of them.

Kentucky has executed two inmates since the reinstatement of the death penalty in 1976. Harold McQueen of Madison County was put to death in the electric chair in 1997. Eddie Lee Harper of Louisville became the only inmate to be executed by lethal injection in 1999.

Copyright 2007 by The Associated Press. All Rights Reserved

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