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Judge calls for trial in Ky. lethal injection case

BRETT BARROUQUERE

Associated Press

A judge in Kentucky on Friday called for a trial to resolve disputed aspects of how the state handles an inmate in the days leading up to an execution.

Franklin Circuit Judge Phillip Shepherd issued a three-page order setting a pre-trial conference for Sept. 22, at which time he plans to set a date for a full trial over how the state proposes to carry out a lethal injection.

Any trial would not focus on the state's plans to use one or two drugs to carry out a death warrant. Shepherd previously ruled that Kentucky's plans on that front appeared to pass constitutional muster and Friday's order made no mention of the issue. Instead, the judge took issue with how the state assesses condemned inmates' mental abilities in the weeks leading up to an execution.

In December, Shepherd raised concerns about how the state would determine if an inmate is mentally disabled, if the public and defense attorneys see enough of the execution preparation before the lethal injection begins and if the inmate has access to counsel in the hours leading up to an execution.

Kentucky is barred from executing any inmates under an injunction issued by Shepherd in 2010. In December, the judge opted to keep that injunction in place. Multiple death row inmates challenged Kentucky's use of three drugs to carry out a lethal injection. As a result, the state has switched to using one or two drugs.

The U.S. Supreme Court has previously addressed many of these issues, with a decision barring the execution of the mentally disabled being the most recent.

The trial order comes as multiple states confront a shortage of drugs commonly used in executions and some, such as Missouri, have tried drugs previously untested in executions. Missouri opted for pentobarbital, which was used to execute serial killer Joseph Paul Franklin in November, Allen Nicklasson in December and Herbert Smulls on Jan. 29.

The state has opted not to appeal Shepherd's decision. A trial could delay by months or more than a year Kentucky's ability to carry out a death sentence for any of its 33 inmates on death row as briefs are filed and a final ruling is issued.

For the inmates, the decision is something of a relief.

"A lot of these guys live and pray day to day," Randy Haight, who was condemned to death for killing two people in central Kentucky in 1985, said of the December ruling in a letter to The Associated Press.

Shepherd halted lethal injections in 2010 as the state prepared to execute Gregory L. Wilson for a 1987 murder in Kenton County. The judge had expressed concerns about how the state would determine if an inmate is mentally disabled and whether the use of a three-drug mixture caused an unconstitutional amount of pain and suffering.

Wilson, along with inmates Ralph Baze, Thomas C. Bowling, Robert Foley, Brain Keith Moore and Parramore Sandborn, are plaintiffs in the suit.

Shepherd's rulings were the latest development in a decade-long battle over how Kentucky may carry out the court-mandated sentences for its death row inmates in cases that rose to the U.S. Supreme Court, which effectively upheld lethal injections in 2007.

Kentucky has executed three inmates since the reinstatement of the death penalty in 1976, with the last execution in 2008.

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Follow Associated Press reporter Brett Barrouquere on Twitter: http://twitter.com/BBarrouquereAP

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