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Federal judge turns down request to intervene, halt executionPosted on Aug. 7

Federal judge turns down request to intervene, halt executionPosted on Aug. 7


MISSOULA - A federal judge here dismissed efforts Monday by civil liberties groups that want to halt Friday's execution of convicted murder David Dawson.

District Judge Donald Molloy sided with attorneys for the state of Montana in ruling that the groups, led by the American Civil Liberties Union, lacked standing to intervene in the case.

Helena attorney Ron Waterman, who represented the groups, said he was disappointed with the decision. The groups filed notice of intent to appeal the ruling to the 9th U.S. Circuit Court of Appeals and separately filed a claim in state District Court in Helena late Monday asking a state judge to hear their challenge of Montana's protocol for lethal injections.

Chris Tweeten, chief civil counsel for the state Department of Justice, said he was pleased with Molloy's ruling.

"Obviously, we think based on the arguments that we presented that the judge was correct that the federal court didn't have jurisdiction to listen to this particular argument from these particular plaintiffs," he said.

The ACLU and other groups contend lethal injection is cruel and unusual punishment, and should be deemed unconstitutional. They have asked that Dawson's execution, and any others in the state, be postponed until the matter can be addressed. The groups contend recent evidence shows the execution method can actually be painful.

The groups had earlier asked the state Supreme Court to intervene, but justices there twice turned them down - specifically noting that Dawson himself wants the execution to move forward and does not support the groups' efforts.

Attorneys for the state argued in written papers filed Monday that Molloy should dismiss the groups' request because they don't have any legal standing in the dispute.

The groups "do not and cannot allege a direct personal stake in the outcome of this litigation," wrote Pam Collins, an assistant attorney general, wrote in court documents filed Monday morning. "They allege, at best, a conjectural or hypothetical harm, and an alleged harm that is common to all members of the general public."

The state's argument essentially mirrored what attorneys wrote when the civil liberties groups sought a similar order from the state Supreme Court.

In addition to lacking standing, Collins said the groups should not be entitled to an emergency injunction to halt the execution because they have "inexplicably waited" to file their request in federal court until just a week before the scheduled execution.

Dawson, convicted of murdering three members of a family in Billings in 1986, is scheduled to be executed by lethal injection early Friday. He fought for two years to have his attorneys fired and have his appeals ended so that he could be executed. He was successful in those efforts and has said in court documents that he opposes the groups' efforts to halt his execution. He would be the first person executed in Montana since 1998.

Although he ruled against the civil liberties groups, Molloy expressed reservations about Montana's protocol for carrying out lethal injections and whether it ensured that a condemned prisoner's rights against cruel and unusual punishment were upheld.

"The gravity of plaintiffs' concerns cannot be ignored," Molloy wrote.

"Courts, however, are not empowered to change a law, or the manner of its enforcement, at the request of anyone who believes it to be bad law or bad procedure. The justice and fitness of the law is the concern of the legislature and the executive branch," he wrote.

"The judge was obviously very troubled about what we've raised," Waterman said.

Tweeten, however, said the state is confident that its protocol would survive a court challenge.

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