Death row inmate Michael Ballard has expressed a willingness to die, but it won't be by lethal injection if he has anything to say about it.
In a motion filed Thursday morning, the Allentown man who admitted to killing five people seeks to join a federal lawsuit challenging Pennsylvania's method of execution.
Ballard's motion to join the litigation will likely postpone his execution indefinitely as the case is sorted out. The motion comes less than three weeks before his scheduled Dec. 2 execution. The filing notes that not staying the execution until the litigation is resolved would be a violation of Ballard's rights.
In the filing, Ballard seeks to join two class-action lawsuits in the state. The first, Williams versus the Pennsylvania Department of Corrections, challenges the execution protocol in the Commonwealth, alleging that the new lethal injection cocktail violates law. The second suit, Chester versus Wetzel, challenges the Department of Corrections on the ground that the execution protocol violates the Constitution.
A hearing is set for Nov. 18 before Northampton County Judge Emil Giordano for argument as to why Ballard should be permitted to join in the litigation. District Attorney John Morganelli declined to comment on the filing, saying he'll be making any arguments in court.
Under the class-action lawsuit, prisoners claim the lethal cocktail of drugs the state injects into inmates violates the Constitution. Lethal injections introduce an unnecessary risk of pain that could violate the ban on cruel and unusual punishment, and their resulting deaths deprive them of their due process protected under the 14th Amendment, the lawsuit argues.
Ballard, who wrote the U.S. Supreme Court to say he did not wish to challenge his death penalty sentence, told Giordano he was acting sanely when he chose not to appeal his execution. However, he told The Morning Call newspaper soon afterward he does not trust the government to execute him correctly.
"I'm certainly not going to jump to the head of the line and let them guinea pig on me," Ballard said in the interview.
The lawsuit focuses in part on the effectiveness of sodium thiopental, the first of three drugs the Department of Corrections injects into the condemned during the execution. Should the drug not work properly or be injected incorrectly, the inmate would experience excruciating pain when the third drug, potassium chloride, stops their heart, the lawsuit says. The inmate would be unable to communicate their agony because the second drug, pancuronium bromide, paralyzes the inmate, according to the lawsuit.
If Ballard did not join the suit or raise any last-minute appeals, he likely would have been the first Pennsylvania inmate to be executed since Gary Heidnik was put to death in 1999 for kidnapping, raping and murdering two women in Philadelphia.
The seven-year-old lawsuit is in Middle District Court of Pennsylvania.
Ballard is scheduled to appear in Northampton County Court Nov. 17 for a hearing to determine his competency.
Ballard received four death sentences for the 2010 murders of Denise Merhi, his ex-girlfriend; Denis Marsh, her father; Alvin Marsh, her grandfather; and Steven Zernhelt, their neighbor.
Before the Northampton murders, Ballard pleaded guilty in 1992 to murdering Donald Richard in Allentown. He was on parole for that crime when the Northampton killings occurred.
Staff reporter Sarah M. Wojcik contributed to this report.