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Last year, U.S. District Judge Joseph Bataillon of Omaha vacated the death sentence of Charles Jess Palmer for a 1979 murder in Grand Island.

In doing so, Bataillon cited the 2002 ruling by the U.S. Supreme Court that said juries, not judges, must decide if a crime merits the death penalty.

At the end of his order, Bataillon said he had been prepared to rule the use of the electric chair as cruel and unusual punishment and cited these reasons:

n Palmer has presented evidence from medical and scientific experts, electrocution witnesses, prison officials, coroner reports, protocols for Nebraska executions and post-mortem photographs of the three men executed in Nebraska since 1972 (Harold 'Wili' Otey, John Joubert and Robert Williams).

n Protocols show Nebraska's electrocution procedure calls for application of 2,450 volts of electricity for eight seconds, followed by 480 volts for 22 seconds, followed by a 20-second pause, then a second application of 2,450 volts for eight seconds and 480 volts for 22 seconds.

n Scientific expert testimony does not establish any scientific or medical reason for this procedure. Indeed, the purposeful 20-second delay between applications of the current potentially allows the inmate to regain consciousness.

n Coroner reports show John Joubert suffered a 4-inch blistering burn on the top of his head and blistering on both sides of his head above his ears.

Robert Williams had a "bubble blister" the size of a baseball on his left calf. Williams' post-mortem exam also showed pronounced "charring" on both sides of the knee and on the top of the head. An execution witness reported seeing smoke emanating from Williams' knee and head.

Witnesses observed that Otey was still breathing after the first and second applications of electricity.

n Expert medical testimony establishes that "charring" burns are fourth-degree burns, due to severity.

n Burns on other parts of the inmate's body can be caused by arcing due to the saline solution dripping from spots where electrodes are attached to the inmate's skin. Such burns are not necessary to cause death.

n Expert testimony provides no evidence that electrocution produces instantaneous unconsciousness.

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n Scientific expert testimony shows there is no way to know what voltage is being delivered to the person being executed unless there is a voltage meter on the person.

n The amount of current being delivered depends on the resistivity of human tissue; each type of tissue conducts electricity differently.

n The skull shields the brain from electricity; certain evidence indicates less than one-tenth of the current used in an electrocution goes to the brain. Other expert testimony shows that merely because an inmate's heart stops beating does not mean he or she has lost consciousness.

n The pause in application of the current is likely more painful than a continuous jolt would be.

n Autopsy examinations of people executed in other jurisdictions show virtually no damage to the brain, thus indicating the brain is likely not wholly incapacitated during a judicial execution.


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