The Last Lethal Injection?

By David R. DowThursday, November 1, 2007; Page A21

The Supreme Court's decision Tuesday to prevent the state of Mississippi from executing Earl Berry strengthened the court's de facto moratorium on the death penalty. In the past three weeks, the justices have also halted executions in Virginia and Texas. Executions are unlikely to be carried out until the court decides whether the lethal injection protocol used in nearly every state with the death penalty (the exception is Nebraska, which still uses the electric chair) violates the Eighth Amendment by causing the inmate to experience torture while being executed.

The moratorium began to take shape when the court announced Sept. 25 that it would review a Kentucky case, Baze v. Rees, and address the constitutionality of the three-step protocol of lethal injections. Perversely, though, the justices refused to intervene in a Texas case that came before them that evening. As a result, Michael Richard was executed about 8:20 that night. I was one of several lawyers representing Richard. We had not planned on raising a lethal-injection challenge in his case. Instead, we had pinned our hopes of saving Richard's life on the fact that he was mentally retarded.

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Five years ago, the high court ruled that states cannot execute people who are mentally retarded. Richard had an IQ of 64 -- below the 70-point cutoff for mental retardation. Richard had not presented this claim in federal court because his court-appointed lawyer neglected to present the evidence of Richard's IQ to the federal judge. When the lawyer notified the U.S. Court of Appeals for the 5th Circuit that he had Parkinson's disease and needed to withdraw, the court denied him permission to do so. On the day of his scheduled execution, Richard had two petitions pending at the Supreme Court: They asked the court to conclude that the 5th Circuit hadn't given him a fair chance to present his evidence of mental retardation and that, even if it had, the state still could not execute a retarded man.

But the high court's decision that morning to hear the Kentucky case created another option.
Richard's lawyers, all volunteers, decided to write a new appeal for consideration in state court, raising the claim about lethal injections. It is well known now that Sharon Keller, the chief judge of the Texas Court of Criminal Appeals, refused to allow us to file the pleadings at 5:30 p.m., when we finished preparing them. (The Texas court, unlike the Supreme Court, does not accept electronic filings, and a series of computer crashes in our office in Houston delayed our preparation of 10 hard copies of the 100-page petition and thus our ability to deliver them on time to the court in Austin.) We pleaded with the court at least three times to stay open, but Keller would not make an exception to the policy that the clerk's office closes at 5. Keller has correctly been criticized, even vilified, for this decision. But the focus on Keller should not absolve the others who share responsibility for this preventable travesty.

The Texas attorney general's office, for example, knew of our intentions that day. Officials there also knew about the delay. Attorney General Greg Abbott could have advised the warden not to proceed with Richard's execution, but he elected not to. Gov. Rick Perry (R) knew what was happening but did not act. The district attorney's office was aware of the development in the Kentucky case and that we had attempted to file an additional pleading citing that development, yet that office also declined to act.

Finally, there is the Supreme Court. For half a decade lawyers have been trying to get the high court to review the constitutionality of the prevalent protocol for lethal injections. The justices knew what they had done that morning in the Kentucky case. They also knew -- because we told them in a last-minute pleading -- that the state court had closed its door on us.
Yet the justices did nothing. They allowed the execution to proceed. Judge Keller's decision, effectively consigning Michael Richard to death, was reprehensible. But it was also typical of the arbitrariness and brazen disregard for legal principle that characterizes most death penalty cases. Since the Supreme Court set this moratorium in motion with its announcement in September, nearly all of the more than 3,000 death row inmates in America have had their lives extended -- all, that is, except one.

David R. Dow is the Distinguished University Professor at the University of Houston Law Center. He works with the nonprofit Texas Defender Service and has represented more than 75 death row inmates. He is writing a book on the virtues of judicial activism.