Court: Execution should go on
By JENNIFER McKEE - IR State Bureau - 07/26/06
HELENA — Three-time murderer David Dawson should be executed next month as planned, a unanimous Montana Supreme Court decided Tuesday.
The high court refused to intervene in an 11th-hour effort to postpone Dawson’s Aug. 11 execution.
Dawson was sentenced to death for kidnapping and killing three members of a Billings family in 1986, including an 11-year-old boy. Only the family’s teenage daughter survived.
Dawson two years ago withdrew from all legal attempts to postpone or change his death sentence. He disavowed the latest attempt to postpone his execution.
The Montana American Civil Liberties Union along with church groups, state lawmakers and citizens asked the Supreme Court on July 11 to postpone all executions in Montana — including Dawson’s — until a legal investigation can determine whether Montana’s lethal injection method allows the condemned to suffer before death.
The groups argued that the way Montana conducts lethal injection is similar to other states where studies have shown the condemned could have been conscious at the time of death, possibly experiencing the pain of medications intended to stop the condemned’s heart.
Lethal injection involves three chemicals: A barbiturate, a paralyzing agent and heart-stopping medication. The final drug can cause severe pain if the condemned is not rendered unconscious by the initial barbiturate.
The ACLU and others argued that in some cases —although no known instances in Montana — studies have shown that the condemned did not have enough barbiturate in their bodies to completely block the experience of pain.
They argued that because lethal injection also uses a paralyzing agent, the condemned cannot show pain, even if he experiences it.
Attorney General Mike McGrath, arguing for the state, cited an expert who had reviewed Montana’s lethal injection method. The expert concluded that far less than one-tenth of 1 percent of the general population would be expected to remain conscious after receiving the amount of barbiturate Montana uses in lethal injection executions.
The ACLU asked the top court to do something unusual: Get involved in a case before a lower district court has ruled on the matter.
Six members of the seven-member Supreme Court wrote that because Dawson is the only condemned man in Montana with an execution date set and he has already asked for the sentence to proceed, the top court saw no need to take the extraordinary step of involving itself in the matter.
“Moreover,” the justices wrote, “the Montana Legislature will convene in regular session in January of 2007 and may choose to address these matters during the course of its work, with or without a court decision.”
A final judge, Justice Jim Nelson, joined by Justice Patricia Cotter, who also signed the majority opinion, wrote a second opinion. Nelson agreed that the high court should not get involved in the case, but he also cautioned that neither should the courts ignore the controversy raised by the ACLU.
“This issue is simply not going to go away,” Nelson wrote.
Although the top court declined to get involved in the case, their decision did nothing to prevent the ACLU and others from taking their concerns to a lower district court.
Ron Waterman, the Helena lawyer for the ACLU and the other groups, said he was disappointed with the decision, but he agreed with Nelson: the debate is not going to go away.
“We have to address it,” Waterman said.
Waterman said the groups have not yet decided what their next step may be.
Attorney General Mike McGrath also recognized that the Supreme Court’s decision may not signal the end of the line in the case. Still, he said in an interview Tuesday that “the state’s legal position was pretty strong.”
“The state’s position is that the date is set for Aug. 11 and it’s our plan to proceed to carry out the court’s order on that date,” McGrath said.
Bob Anez, a spokesman for the Department of Corrections, said the prison and agency have been preparing for the execution for several weeks and everything is on schedule to allow the execution to go forward as ordered.
He said Warden Mike Mahoney personally delivered a copy of the high court’s decision to Dawson’s cell Tuesday afternoon. Dawson asked the warden if the decision meant the execution “is a go,” Anez said.
The warden replied that although he is not a lawyer and cannot predict what may happen in the future, as of Tuesday, the execution is on schedule to proceed Aug. 11.
Lethal injection is the only execution method allowed in Montana. Two other men — Duncan McKenzie and Terry Langford have been put to death in Montana using the method.
Dawson will be the third person put to death in Montana since 1943.
By JENNIFER McKEE - IR State Bureau - 07/26/06
HELENA — Three-time murderer David Dawson should be executed next month as planned, a unanimous Montana Supreme Court decided Tuesday.
The high court refused to intervene in an 11th-hour effort to postpone Dawson’s Aug. 11 execution.
Dawson was sentenced to death for kidnapping and killing three members of a Billings family in 1986, including an 11-year-old boy. Only the family’s teenage daughter survived.
Dawson two years ago withdrew from all legal attempts to postpone or change his death sentence. He disavowed the latest attempt to postpone his execution.
The Montana American Civil Liberties Union along with church groups, state lawmakers and citizens asked the Supreme Court on July 11 to postpone all executions in Montana — including Dawson’s — until a legal investigation can determine whether Montana’s lethal injection method allows the condemned to suffer before death.
The groups argued that the way Montana conducts lethal injection is similar to other states where studies have shown the condemned could have been conscious at the time of death, possibly experiencing the pain of medications intended to stop the condemned’s heart.
Lethal injection involves three chemicals: A barbiturate, a paralyzing agent and heart-stopping medication. The final drug can cause severe pain if the condemned is not rendered unconscious by the initial barbiturate.
The ACLU and others argued that in some cases —although no known instances in Montana — studies have shown that the condemned did not have enough barbiturate in their bodies to completely block the experience of pain.
They argued that because lethal injection also uses a paralyzing agent, the condemned cannot show pain, even if he experiences it.
Attorney General Mike McGrath, arguing for the state, cited an expert who had reviewed Montana’s lethal injection method. The expert concluded that far less than one-tenth of 1 percent of the general population would be expected to remain conscious after receiving the amount of barbiturate Montana uses in lethal injection executions.
The ACLU asked the top court to do something unusual: Get involved in a case before a lower district court has ruled on the matter.
Six members of the seven-member Supreme Court wrote that because Dawson is the only condemned man in Montana with an execution date set and he has already asked for the sentence to proceed, the top court saw no need to take the extraordinary step of involving itself in the matter.
“Moreover,” the justices wrote, “the Montana Legislature will convene in regular session in January of 2007 and may choose to address these matters during the course of its work, with or without a court decision.”
A final judge, Justice Jim Nelson, joined by Justice Patricia Cotter, who also signed the majority opinion, wrote a second opinion. Nelson agreed that the high court should not get involved in the case, but he also cautioned that neither should the courts ignore the controversy raised by the ACLU.
“This issue is simply not going to go away,” Nelson wrote.
Although the top court declined to get involved in the case, their decision did nothing to prevent the ACLU and others from taking their concerns to a lower district court.
Ron Waterman, the Helena lawyer for the ACLU and the other groups, said he was disappointed with the decision, but he agreed with Nelson: the debate is not going to go away.
“We have to address it,” Waterman said.
Waterman said the groups have not yet decided what their next step may be.
Attorney General Mike McGrath also recognized that the Supreme Court’s decision may not signal the end of the line in the case. Still, he said in an interview Tuesday that “the state’s legal position was pretty strong.”
“The state’s position is that the date is set for Aug. 11 and it’s our plan to proceed to carry out the court’s order on that date,” McGrath said.
Bob Anez, a spokesman for the Department of Corrections, said the prison and agency have been preparing for the execution for several weeks and everything is on schedule to allow the execution to go forward as ordered.
He said Warden Mike Mahoney personally delivered a copy of the high court’s decision to Dawson’s cell Tuesday afternoon. Dawson asked the warden if the decision meant the execution “is a go,” Anez said.
The warden replied that although he is not a lawyer and cannot predict what may happen in the future, as of Tuesday, the execution is on schedule to proceed Aug. 11.
Lethal injection is the only execution method allowed in Montana. Two other men — Duncan McKenzie and Terry Langford have been put to death in Montana using the method.
Dawson will be the third person put to death in Montana since 1943.