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Pa. high court rejects stay for condemned man

| Monday, Nov. 5, 2012, 8:08 p.m.

HARRISBURG — The Pennsylvania Supreme Court on Monday refused to stop the execution of convicted killer Hubert Michael, leaving him with dwindling options three days before he is scheduled to receive a lethal injection.

Justices on the state's highest court upheld rulings by a York County judge and the state Commonwealth Court on grounds that they lacked the authority to grant a stay.

But two federal judges are weighing motions filed by Michael's lawyers in separate cases to forestall the execution. The state Pardons Board has scheduled a clemency hearing at the Capitol on Wednesday.

Michael, 56, pleaded guilty to the 1993 shooting death of a teenage girl in York. Unless his execution is stayed, he would be the fourth inmate put to death in Pennsylvania in the last 50 years and the first in 13 years.

The board must unanimously support a clemency petition for it to advance to Gov. Tom Corbett, but the final decision rests with the governor. State Attorney General Linda Kelly, one of the five Pardons Board members, has recused herself from Michael's case.

One of Michael's lawyers hung up on an Associated Press reporter who called him for comment Thursday, and another who was in Harrisburg for a U.S. District Court hearing in a class action case that involves Michael declined to answer any questions.

In one of the federal cases, Michael's lawyers are seeking to reopen the murder case. They say he suffers from mental health problems that were exacerbated by life inside State Correctional Institution Graterford near Philadelphia, but that he has gotten better since he was transferred to SCI Greene.

In the class action case, an expert witness on Monday raised concerns in federal court about how the state carries out its death penalty.

Dr. David Waisel, an anesthesiologist at Children's Hospital in Boston, testified on behalf of all 200 Death Row prisoners at a hearing in a 5-year-old class action lawsuit challenging the constitutionality of the state's execution protocol.

Waisel questioned the adequacy of the training and experience required of members of the “lethal injection team.” He said potentially confusing color codes on the drugs could result in a mix-up that unnecessarily causes excruciating pain for the inmate.

Standard colors are used to group similar drugs “to make sure that we are giving at least the drug we want to use or, if not, a drug of the same class,” Waisel said.

The state's lead attorney suggested that an execution is a unique event that should not be held to the same rules that apply to general medical care.

“It's not a question of whether we are complying with the standards in a medical setting,” Chief Deputy Attorney General Amy Zapp said.

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