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Florida death row inmate wins stay, hearing on new execution drug

By Bill Cotterell

TALLAHASSEE, Florida (Reuters) - The Florida Supreme Court ordered a hearing for a man due to be executed next month for multiple murders, after his lawyers challenged the use of a new anesthetic chemical in the state's three-drug method of lethal injection.

The justices on Monday ordered a stay until December 27 and required the prison system to show why it believes a new drug being used by the state, midazolam hydrochloride, renders the condemned inmate incapable of feeling pain when the next two drugs cause death.

The state has used the drug only twice and, in its first use, some movement of the prisoner caused opponents of capital punishment to claim he was suffering.

Governor Rick Scott last month signed a death warrant for Askari Abdullah Muhammad, previously known as Thomas Knight, and his execution was scheduled for December 3 for the fatal stabbing of a death row prison guard, Richard Burke.

He was also sentenced to die in 1974 for the abduction, robbery and murder of a Miami couple, Sydney and Lillian Gans.

In a 5-2 ruling, the court questioned whether Florida's lethal-injection protocol would subject Muhammad to a "substantial risk of serious harm," according to the high court's unsigned ruling.

Seven death row inmates have a case pending in U.S. district court in Jacksonville, claiming that the Constitution's ban on "cruel and unusual punishments" should bar use of midazolam as the first part of the three-drug death protocol adopted by Florida's Department of Corrections.

Attorneys for Muhammad made similar claims in their plea to the Florida Supreme Court.

The court ordered the circuit court in Bradford County to hold a hearing to examine the condemned man's challenge to "the efficacy of midazolam hydrochloride as an anesthetic in the amount prescribed by Florida's protocol."

It also ordered the prison system "to produce correspondence and documents it has received from the manufacturer of midazolam hydrochloride concerning the drug's use in executions or otherwise, including those addressing any safety and efficacy issues."

In the two previous executions involving midazolam last month, the Department of Corrections said it was a humane replacement for pentobarbital, the sedative used previously, but refused to identify research or scientific studies, saying that would compromise security.

Chief Justice Ricky Polston and Justice Charles Canady dissented, saying Muhammad should have to demonstrate that the revised lethal-injection is "sure or very likely to cause serious illness and needless suffering," in order to get a stay of execution.

"Muhammad relies on newspaper articles that reported that recent executed inmate William Happ remained conscious for a longer period of time than inmates executed under prior protocols and that Happ's head moved after he failed to respond to a consciousness check," wrote Polston.

He said the petitioner did not show "reason to suspect that the movement of Happ's head was a voluntary expression of pain, rather than an involuntary movement made while unconscious."

Happ was executed October 15 in the nation's first use of midazolam. Darius Kimbrough died on November 12. Both men were convicted of murdering women in separate cases.

While awaiting trial for the Gans murders, Muhammad was among 11 inmates who escaped from the Miami-Dade County Jail. He was recaptured in New Smyrna Beach on December 31, 1974.

While on Death Row, Muhammad was convicted of fatally stabbing Burke with a sharpened spoon on October 12, 1980.

(Editing by David Adams and Steve Orlofsky)

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