Fierro v. Gomez

• Decision Date: 04 October 1994
• Docket Number: No. C-92-1482 MHP.,C-92-1482 MHP.
• Parties: David FIERRO, Robert Harris, and Alejandro Gilbert Ruiz, as individuals and on behalf of themselves and all others similarly situated, Plaintiffs, v. James GOMEZ, as an individual, and in his capacity as Director, California Department of Corrections, and Arthur Calderon, as an individual, and in his capacity as Warden of San Quentin Prison, Defendants.
• Court: U.S. District Court — Northern District of California

865 F. Supp. 1387

David FIERRO, Robert Harris, and Alejandro Gilbert Ruiz, as individuals and on behalf of themselves and all others similarly situated, Plaintiffs, v. James GOMEZ, as an individual, and in his capacity as Director, California Department of Corrections, and Arthur Calderon, as an individual, and in his capacity as Warden of San Quentin Prison, Defendants.

No. C-92-1482 MHP.

United States District Court, N.D. California.

October 4, 1994.

Matthew A. Coles, Michael Laurence, American Civil Liberties Union, Foundation of Northern CA Inc., San Francisco, CA, for plaintiffs.

Paul D. Gifford, Peter J. Siggins, George H. Williamson, Dane R. Gillette, Daniel E. Lungren, CA State Atty. General's Office, San Francisco, CA, Ronald S. Mathias, for defendants.

                                            TABLE OF CONTENTS
                FINDINGS OF FACT ............................................................. 1389
                  I. The Parties ............................................................ 1389
                 II. Statutory Authorization For Executions In California ................... 1390
                III. Procedures For Execution By Lethal Gas In California ................... 1391
                 IV. Plaintiffs' Experts .................................................... 1393
                  V. Defendants' Experts .................................................... 1394
                 VI. Effects Of Hydrocyanic Gas On The Human Body—Overview of the Theories  1395
                VII. Supporting Evidence .................................................... 1397
                     A. Scientific Literature ............................................... 1397
                     B. Lethal Doses Of Inhaled Cyanide ..................................... 1399
                     C. San Quentin Observations ............................................ 1400
                        1. Execution Of Robert Harris ....................................... 1401
                        2. Execution of David Mason ......................................... 1402
                        3. Pre-Furman Executions ........................................... 1402
                

                VIII. Additional Findings ..................................................... 1403
                  IX. Legislative Trends In The United States Regarding Execution Methods ..... 1404
                CONCLUSIONS OF LAW ........................................................... 1408
                  I. Standing ................................................................ 1408
                 II. The Merits .............................................................. 1409
                     A. General Concepts ..................................................... 1409
                     B. Campbell v. Wood ..................................................... 1409
                     C. The Framework Applied ................................................ 1413
                CONCLUSION ................................................................... 1415
                

PATEL, District Judge.

Plaintiffs are inmates at San Quentin State Prison in San Quentin, California who have been sentenced to death under the laws of the State of California. They brought this action on April 17, 1992, on behalf of themselves and all others similarly situated, challenging the constitutionality of California's method of execution by lethal gas.

The court has jurisdiction under 28 U.S.C. § 1343. Venue is proper under 28 U.S.C. § 1391(b) since defendants reside in the State of California and a substantial part of the conduct giving rise to this action occurred and will occur in the Northern District of California.

Trial was held for eight days. Plaintiffs presented their case through eight witnesses: 1) the Reverend Martin Leon Harris, a witness to the execution of Robert Alton Harris, one of the named plaintiffs and Reverend Harris' cousin; 2) Dr. Kent Russell Olson, an expert in medical toxicology, emergency medicine, and the treatment of poisoning, including cyanide poisoning; 3) Mr. Donald Cabana, former warden of a state prison in Mississippi, who presided over two executions by lethal gas; 4) Warden Daniel Vasquez, Warden of San Quentin State Prison at the time of trial, who presided over two executions by lethal gas at San Quentin, including the execution of Robert Alton Harris, one of the named plaintiffs in this action; 5) Professor Franklin E. Zimring of the University of California at Berkeley Law School at Boalt Hall, an expert in criminal justice policy; 6) Dr. John Friedberg, an expert in neurology; and 7) Dr. Richard Traystman, an expert in the areas of hypoxia and its effects on the heart and the brain. The testimony of Dr. Robert Kirschner, former pathologist with the Cook County Medical Examiner's Office in Chicago, Illinois, was presented through videotape, by stipulation of the parties.

Defendants presented their case through the testimony of two witnesses: 1) Dr. Alan H. Hall, medical toxicologist and an expert on cyanide and emergency medicine; and 2) Dr. Steven I. Baskin, expert in pharmacology and toxicology.

Following the trial, counsel submitted post-hearing briefs, and oral argument was heard. Counsel also filed supplementary briefs addressing the impact on this action of the recent Ninth Circuit decision in Campbell v. Wood, 18 F.3d 662 (9th Cir.) (en banc), reh'g and reh'g en banc denied, 20 F.3d 1050 (1994).

Having considered the testimony and evidence presented at trial, the oral arguments and briefs of counsel, and for the reasons set forth below, the court now enters the following Findings of Fact and Conclusions of Law in accordance with its obligations under the Federal Rules of Civil Procedure. See Fed. R.Civ.Proc. 52(c) (A judgment under Rule 52(c) "shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.").¹

FINDINGS OF FACT

I. The Parties

Plaintiffs David Fierro and Alejandro Gilbert Ruiz are prisoners who have been sentenced to death under the laws of the State of California and are imprisoned at San Quentin State Prison in San Quentin, California. At the time of the filing of this action, plaintiff Robert Alton Harris was also a prisoner sentenced to death and housed at San Quentin. He was executed by the State of California on April 21, 1992, by the administration of lethal gas in the gas chamber at San Quentin State Prison. See Ex. 55 (Harris Execution Record).²

Defendant James Gomez is Director of the California Department of Corrections. Defendant Arthur Calderon is Warden of San Quentin State Prison. He is the successor in that position to Daniel Vasquez, who was originally a defendant in this action.³ Defendants are employees of the State of California and at all times relevant to this action were acting as employees within the scope of their employment with the State of California.

II. Statutory Authorization For Executions In California

California has provided for execution by means of lethal gas since 1937; before that time, executions in the state were carried out by hanging. See People v. Righthouse, 10 Cal.2d 86, 72 P.2d 867 (1937); Ex. 103 (California legislative materials). Between 1937 and 1967, California carried out numerous executions in the gas chamber. See Ex. 102 at 5, 11 (National Prisoner Statistics Bulletin) (reporting 292 executions between 1930 and 1970).

In 1972 in Furman v. Georgia, the Supreme Court set aside the death penalty, as it was then administered, on eighth amendment grounds. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Subsequently, the Supreme Court reinstated the death penalty, holding that revised statutes did not violate the eighth amendment. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

Since the death penalty was reinstated in 1976, California has executed two inmates, Robert Alton Harris and David Mason. The State of California, through its agents Gomez and then-Warden Vasquez, executed plaintiff Harris on April 21, 1992, by administration of lethal gas. The sentence was carried out pursuant to California Penal Code section 3604, which at the time of that execution provided:

§ 3604. Method of execution; lethal gas

The punishment of death shall be inflicted by administration of a lethal gas.

Cal.Penal Code § 3604 (1982).

California Penal Code section 3604 was amended in 1992 by the Legislature of the State of California. It currently provides:

§ 3604. Method of execution; election

(a) The punishment of death shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections.

(b) Persons sentenced to death prior to or after the operative date of this subdivision shall have the opportunity to elect to have the punishment imposed by lethal gas or lethal injection. This choice shall be made in writing and shall be submitted to the warden pursuant to regulations established by the Department of Corrections. If a person under sentence of death does not choose either lethal gas or lethal injection within 10 days after the warden's service upon the inmate of an execution warrant issued following the operative date of this subdivision, the penalty of death shall be imposed by lethal gas.

(c) Where the person sentenced to death is not executed on the date set for execution and a new execution date is subsequently set, the person again shall have the opportunity to elect to have punishment imposed by lethal gas or lethal injection, according to the procedures set forth in subdivision (b).

(d) Notwithstanding subdivision (b), if either manner of execution described in subdivision (a) is held invalid, the punishment of death shall be imposed by the alternative means specified in subdivision (a).

Cal.Penal Code § 3604 (1994).

Between January 1, 1993 and October 14, 1993, twenty-four condemned inmates were served with execution warrants allowing them to elect lethal gas or lethal injection. Sixteen inmates refused to make a choice; seven selected lethal injection; and one selected lethal gas. See Ex. A-1 (Decl. of Denise Dull and attached...