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2 Death Row appeals heard

FRANKFORT — The state Supreme Court on Thursday heard arguments on whether the state adopted its lethal injection protocol correctly and whether the 1993 trial of a man who killed two cops was held in the appropriate court.

The two appeals — brought on behalf of Death Row inmates Thomas Clyde Bowling Jr. and Ralph Baze — are some of the last remaining appeals for both men.

Baze, who shot Powell County Sheriff Steve Bennett and deputy Arthur Briscoe, still has two other cases pending as does Bowling, who killed a Lexington couple outside of their dry-cleaning business in 1990.

Public defenders for the two men argued Thursday that Kentucky's lethal injection protocol — or a step-by-step instruction on how to carry out lethal injections in Kentucky — should be declared void because it should have been adopted as an administrative procedure.

If it was an administrative procedure, the protocol would have been subject to public comment and possibly a public hearing, but it was not. A lower court judge has previously ruled that the state adopted the protocols correctly.

Attorneys with the Justice and Public Safety Cabinet argued Thursday that the General Assembly never intended for the lethal injection protocol to become an administrative regulation and subject to that type of scrutiny

John Cummings, an attorney for the Justice and Public Safety Cabinet, said by making it an administrative regulation and subject to the rules of administrative regulation, it would open the Department of Corrections up to more litigation by inmates trying to challenge the death penalty.

John Palombi, a public defender, said inmates and the public had the right to know what was in the protocol because the state was carrying out death sentences on behalf of the people of Kentucky.

"We have no idea if the protocol is the same protocol that was approved by the (United States) Supreme Court," Palombi said during Thursday's hearing.

In April, the United States Supreme Court decided 7-2 that Kentucky's lethal injection protocol did not violate the Eighth Amendment ban on cruel and unusual punishment. The two cases heard Thursday were stayed last year until the U.S. Supreme Court made its decision in the landmark lethal injection case.

Also on Thursday, justices heard arguments on whether Judge William Mains improperly transferred Baze's 1993 trial to Rowan County. Baze agreed to move the case to Franklin Circuit Court because of pretrial publicity.

Mains was later appointed a special judge on the case and transferred the case to Rowan County.

Baze argued that Mains did not have the authority to transfer the case and therefore his conviction should be overturned.

Prosecutors argued that because Mains was appointed a special judge in the case he did have the authority to move the trial. Moreover, they argued, lawyers for Baze should have raised questions about the issue of jurisdiction on previous appeals.

It is unclear when the state Supreme Court will issue an opinion on both cases.

Dennis Briscoe, son of slain deputy Arthur Briscoe, sat with several fellow police officers during Thursday's hearing. The younger Briscoe, who is now a Winchester police officer, said he thinks the state Supreme Court will do the right thing. But Briscoe said he was tired of sitting through Baze's endless appeals.

"Seventeen years is long enough and it is time for the state to carry out the execution," Briscoe said. "It is my hope that directly after the opinions are issued, an execution warrant will be sent to the governor for approval.