SUPPLEMENTAL BRIEF TO PETITION FOR A WRIT OF CERTIORARI - Baze

No. 07-5439

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IN THE

SUPREME COURT OF THE UNITED STATES

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RALPH BAZE, ET AL.,

Petitioners

v.

JOHN D. REES, ET AL.,

Respondents

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ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

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SUPPLEMENTAL BRIEF TO PETITION FOR A WRIT OF CERTIORARI

TO BRING TO THE COURT’S ATTENTION

THE PETITION FOR A WRIT OF CERTIORARI JUST FILED IN

TAYLOR V. CRAWFORD THAT FURTHER EXEMPLIFIES

THE SPLIT AMONG THE LOWER COURTS

CAPITAL CASE

*DAVID M. BARRON

JOHN ANTHONY PALOMBI

ASSISTANT PUBLIC ADVOCATE

KY DEPT. OF PUBLIC ADVOCACY

100 FAIR OAKS LANE, SUITE 301

FRANKFORT, KY 40601

(502)-564-3948

*COUNSEL OF RECORD

September 7, 2007

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Petitioners file this supplemental brief to bring to the Court’s attention the petition

for a writ of certiorari filed on September 5, 2007, in Taylor v. Crawford (attached).

ARGUMENT

That petition also asks this Court to resolve the split among the lower courts over

the legal standard applicable to Eighth Amendment challenges to particular methods of

execution. By doing so, Taylor further exemplifies that a split among the lower courts

exists and that it is important for the Court to resolve the split now before a wealth of

certiorari petitions arrive at the Court. Indeed, the fact that two petitions for a writ of

certiorari arguing that the Court should resolve the split concerning the applicable Eighth

Amendment standard arrived before the Court within a month of each other evinces the

magnitude of the issue. That these two courts, as have so many other courts in the

country, applied vastly different legal standards demonstrates how divided are the courts

across the country when it comes to figuring out the appropriate legal standard.

Petitioners submit that the filing of the petition for a writ of certiorari is further support of

the need for the Court to resolve the circuit split. At a minimum, the Court should hold

the petition for a writ of certiorari in this case to consider it alongside the petition in

Taylor.

In Petitioners’ certiorari petition, they argue that both the circuit courts of appeals

and the state high courts are sharply divided on the applicable standard for determining

whether a particular aspect of a method of execution is cruel and unusual punishment. As

pointed out in the petition, at one end are courts such as those in the Ninth Circuit

jurisdictions that apply an “unnecessary” or “unreasonable” risk of pain standard,

somewhere in the middle is Kentucky with its “substantial risk” standard, at the total

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other end are courts that require some level of risk of pain along with deliberate

indifference. These standards are different, require a different burden of proof, and can

result in a different outcome. This is made clear not only in the instant petition for a writ

of certiorari but also in Taylor’s petition, which cites this case as an example of the

different standard and the split among the courts.

Taylor arrives at the Court under the deliberate indifference standard. Together,

Taylor and this case provide the Court with two totally different and incompatible

standards - - deliberate indifference versus “substantial risk.” And, as articulated in the

instant petition for a writ of certiorari, this is only the tip of the iceberg. Numerous other

standards are being applied by courts across the country and as those cases proceed

through the judicial system, more petitions for a writ of certiorari to resolve this split will

arrive at the Court. The time to resolve this issue is now and the instant case and Taylor

are the cases in which to do it.

The instant case was the first case in the country concerning the chemicals and

procedures used in lethal injections to be resolved on the merits based on a fully

developed record at a trial. Taylor is the second. Many more will come, but these cases

provide all the information necessary to resolve the legal issue without any procedural

hurdle getting in the way, and it would be a great waste of judicial resources to allow

courts to continue applying vastly different, and perhaps erroneous legal standards to

resolve an issue that the Court knows to be time consuming and complex. Thus, the

Court should use the instant case and Taylor to resolve the split among the lower courts

and to clarify the appropriate Eighth Amendment standard to apply to a claim that an

aspect of a method of execution is cruel and unusual punishment.

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CONCLUSION

Based on the additional development of the filing of the petition for a writ of

certiorari in Taylor along with the reasons expressed in the instant petition for a writ of

certiorari, Petitioners respectfully urge the Court to grant certiorari. In the alternative,

Petitioners request that the Court hold this case and decide it in conjunction with the

petition for a writ of certiorari in Taylor v. Crawford.

Respectfully submitted,

_____________________________

*David M. Barron

John Anthony Palombi

Assistant Public Advocates

Department of Public Advocacy

100 Fair Oaks Lane, Suite 301

Frankfort, KY 40601

(502) 564-3948

*COUNSEL OF RECORD

September 7, 2007