Sunday 30 September 2007

The Upcoming Supreme Court Lethal Injection Death Penalty Case:

How It Will Likely Illustrate the Serious Ideological Divisions That Continue to Separate the Justices

By EDWARD LAZARUS
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Thursday, Sep. 27, 2007

With the welter of cases that the Supreme Court accepted for review yesterday, it became all the more likely that this Term (which begins next Monday) will continue last Term's dramatic trend away from Chief Justice John Roberts's ideal of a more unified, collegial court. Instead, we are very likely to see a Court that continues to be riven by emotionally-charged ideological divisions.

Even before yesterday, the justices were set to review highly contentious cases involving such hot-button political issues as the rights of Guantanamo detainees and the contours of the Second Amendment's right to bear arms. As of yesterday, they have also granted review of, among other issues, the constitutionality of voter registration laws that demand photo identification, and of the way 37 states use lethal injection to carry out the death penalty. In this column, I'll focus on the latter case, and the way it may divide the Court

The History of, and Issues Concerning, the Use of Lethal Injection

Of all the cases on the docket, the lethal injection death penalty case may well prove the most divisive, and reflect most clearly the unbridgeable chasm that currently divides liberal and conservatives in our legal culture. Two hundred and twenty years after the Constitution was written, we are as much at sea as ever about how to read our founding charter.

In the 1980s, most of the states that have capital punishment switched over from electrocution to lethal injection, on the theory that injecting a cocktail of poisons would be more painless and humane than the "old sparkies" that then prevailed (and sometimes malfunctioned, to horrific effect). Today, of the 38 death penalty states, all but Nebraska use lethal injection, and almost 90% of all executions since 1976 have used the needle rather than the chair or other methods.

For decades, the lethal injection states have used the same three-drug combination - sodium thiopental (a short-acting anesthesia), pancuronium bromide (which paralyzes the muscles), and potassium chloride (which stops the heart). There is a growing consensus, however, that this now long-since-antiquated cocktail, even when properly administered, causes extraordinary and unnecessary pain. Indeed, in many places, the cocktail used to kill humans is banned for use in the euthanasia of animals. And, as might be expected of such a morbid process, the process of execution by lethal injection, like the process of electrocution before it, is also prone to human error, further exacerbating the risk of unnecessary pain.

For these reasons, a number of states have halted the use of lethal injection, pending a review of their respective death penalty "protocols." And elsewhere, federal judges have stepped in to stop executions or prompt further review.

Why the Lethal Injection Case Will Directly Touch on Divisions Regarding Constitutional Interpretation

Over the last several years, a few of the Justices have expressed interest in taking up the issue of lethal injections - and, as of yesterday, that number finally reached the critical mass of four votes necessary to grant review. It's not hard to see why. Around the country, different courts have been using different standards to assess whether the three-drug cocktail violates the Eighth Amendment's prohibition on cruel and unusual punishments. In granting review of a case coming from Kentucky, the Court has stepped in to create a single standard for deciding under what circumstances, if ever, a risk of unnecessary pain in executions is so significant as to violate the Constitution's Eighth Amendment.

It is hard to imagine a case more perfectly suited to capture the jurisprudential dilemma that has consumed and divided our legal culture for the last thirty years - namely, the tension between interpreting our Constitution in a way that is responsive to the nation's history and experience, and making the interpretive process a free-for-all in which unelected and generally unaccountable judges impose on the Constitution their own personal political and moral beliefs.

This dilemma arises in significant part because some of the Constitution's key phrases (like "due process") are inherently amorphous. The lethal injection case raises a classic example, for it will turn on an interpretation of one of the Constitution's less pellucid phrases - the prohibition on "cruel and unusual" punishments. There is no self-evident benchmark for what is too cruel or too unusual. Rather, deciding what punishments are "cruel" or "unusual" seems to cry out for some sort of subjective judgment - a search for standards and benchmarks that will never be completely value-neutral.

But if defining "cruel and unusual" necessarily calls for some inherently subjective assessment, what limits are there on judicial discretion in creating a constitutional definition? Surely, the constitutional definition of "cruel and unusual punishment" should have a more objective meaning than simply whatever at any given moment a majority of Supreme Court justices think the term should mean, based on their own various senses of individual morality.

How the Lethal Injection Case Will Be Viewed by the Court's Left and Right Wings

Inside the Court, the way the different Justices approach this vexing interpretive problem will inevitably lead to a ferocious battle over the lethal injection case.

On the right wing of the Court, Justices Antonin Scalia and Clarence Thomas purport to have solved this vexing interpretive problem by adopting the jurisprudence of original intent, whereby judges interpret the Constitution according to the Framers' intended definition of the terms in question. Under this theory, the term "cruel and unusual punishment" does not derive meaning from our "evolving standards of decency," as more liberal justices would have it. Instead, the term's meaning was fixed at the nation's founding.

This methodology provides an easy answer to the issues surrounding lethal injection. At the time of the framing, the nation countenanced any number of methods of execution potentially more painful than lethal injection. Hanging and the firing squad were commonplace. Indeed, the last time the Supreme Court considered the constitutionality of a particular mode of execution - more than 100 years ago, in the case of Wilkerson v. Utah - it confirmed the constitutionality of executions by firing squad.

That decision, from Scalia and Thomas's perspective, was right then and is right now. Give the prisoner a blindfold and a cigarette, and get on with it.

More generally, from Scalia's and Thomas's perspective the idea of micromanaging the methodology of execution is not merely wrong, it's absolutely nuts. The Constitution, they believe, gives judges no warrant to second-guess how elected official decide to carry out the death penalty. Moreover, to think otherwise is to exercise in the terrible conceit of mistaking one's own values for those enshrined in the Constitution.

On the opposite wing of the Court, the four most liberal Justices (John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer) will view the lethal injection issue from the other end of the telescope. To them, the language of the Eighth Amendment invites an interpretation that takes into account contemporary mores - and as this method of interpretation has been standard judicial practice for many decades, they have strong Court precedent on their side. From this perspective, it is absurd to think that the Constitution locks in Eighteenth Century ideas about what is and is not "cruel" or "unusual" punishment (especially with respect to a mode of punishment unfathomable at the time).

Moreover, to the extent these Justices will consider the Framers' views relevant, the focus will not be on the specifics of lethal injection. Rather, this wing of the Court will focus on a more general inquiry into whether the Framers intended the Eighth Amendment to prohibit the government from gratuitously risking the infliction of unnecessary pain. After all, they will ask, isn't the readily-avoidable infliction of pain - a risk of pain we would not voluntarily inflict on a dog or horse -- the very essence of "cruelty" for any era?

Boiled down to the brutal essentials, the right-wing will be accusing the left of being unprincipled softies, and the left-wing will be accusing the right of being handmaidens to a form of torture.

The Key Swing Justice Whose Vote May Well Decide the Case's Outcome

Caught somewhere in the crossfire (and no doubt firing shots of their own) will be the Court's three non-originalist conservatives, Chief Justice Roberts and Justices Anthony Kennedy and Samuel Alito. It is difficult to imagine either Roberts or Alito taking an expansive view of what the Eighth Amendment requires. Much more likely, they will view states as having very broad discretion over the implementation of the death penalty. And with jaundiced eyes, they will view the challenges to lethal injection as part of the abolitionist community's decades-long effort to stop executions by whatever means possible. That is not a cause they will be inclined to assist.

The wild card, as so often is the case with the Roberts Court, will be Justice Kennedy. On one hand, he may be the Court's most moralistic justice, the one most likely to read the Constitution through the prism of his own values or, perhaps more accurately, of the values to which he thinks the nation should aspire. This part of Kennedy is likely to find abhorrent the notion that, out of inertia, 37 states use a badly outmoded and potentially horrific method of execution. No good government should aspire to this low standard.

On the other hand, Kennedy has been generally very tough on the issue of the death penalty and very skeptical of death penalty abolitionist tactics. He will worry about the slippery slope of a decision forcing states to rethink their execution protocols. In particular, he will want to avoid any suggestion that states must constantly upgrade their methods to fit advances in science, and will not want to join a decision that predictably opens the door to a steady stream of new attacks on execution methodology.

On balance, I suspect that Kennedy's sense of morality will outweigh his concerns about not over-regulating the states, leading him to reach the result that the current protocol for lethal injection violates the Eighth Amendment. But whichever way the case comes out, the shouting will be heard from coast to coast, and will remind us yet again that we are as far as ever from settling the core issues of how to read our Constitution.


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Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

Death row ruling may suspend U.S. executions

Supreme Court Review; Case to test if injection method is constitutional

Sheldon Alberts
CanWest News Service

Wednesday, September 26, 2007

WASHINGTON - If the Commonwealth of Kentucky had had its way, Ralph Baze would have been dead this morning, executed by lethal injection for the murder of two police officers more than 15 years ago.

But the 52-year-old death row inmate, originally scheduled to die last night, instead celebrated news that the U.S. Supreme Court would hear his appeal in a high-profile case that could force the suspension of capital punishment in America.

In a surprise decision, the high court justices agreed to review the claim by Baze and a fellow Kentucky death row inmate, Thomas Clyde Bowling Jr., that lethal injection violates the U.S. Constitution's protections against cruel and unusual punishment.

"This is huge news which could, and probably should, lead to a de facto moratorium on all lethal injection executions nationwide until the Supreme Court issues a ruling," said Douglas Berman, an Ohio State University law professor and author of a popular legal blog.

The decision to take up the Kentucky cases marks the first time in 129 years that the Supreme Court will hear a test of a method of execution on constitutional grounds.

The legality of capital punishment itself is not being challenged, only the question of whether the administration of a lethal three-drug cocktail causes death row inmates unnecessary or unbearable pain.

Nevertheless, the potential consequences of the upcoming Supreme Court ruling are huge. Thirty-six of the 38 American states that allow capital punishment use the same combination of drugs to put condemned prisoners to death.

"I think it is necessarily going to be a nuanced ruling," said Prof. Berman. "It is unlikely to be a curt 'You can't do lethal injection because it always will cause pain.' "

In the 30 years since the death penalty was reinstated in the American states have overwhelmingly turned to lethal injection as a replacement for hanging, gassing, shooting and electrocution, forms of capital punishment deemed inhumane. Of 1,097 executions since 1977, lethal injections have been used 927 times, according to the Death Penalty Information Center.

Two of the nation's largest states, Florida and California, abruptly halted lethal injection executions in 2006 amid a swirl of controversy about the procedure.

In Florida, former governor Jeb Bush took action after it took 34 minutes to kill convicted murderer Angel Nieves Diaz because of a botched needle placement.

In California, Governor Arnold Schwarzenegger ordered revisions to the state's lethal injection procedure after a state judge found a "pervasive lack of professionalism" in carrying out the death sentences.

Most American states carry out the death penalty by injecting inmates first with sodium pentathol, a fast-acting barbiturate that knocks prisoners unconscious. They are then given a dose of pancuronium bromide to stop their breathing and, finally, potassium chloride to stop their heart.

Baze was originally scheduled for execution yesterday, but won a reprieve earlier this month as he awaited news of his appeal.

Lawyers for Baze and Bowling argued last year before Kentucky's Supreme Court that death row inmates are potentially exposed to horrifying pain if given too low a dose of the first drug. The court ruled against them because of "conflicting" evidence about whether prisoners feel any pain.

There was insufficient evidence that lethal injection "creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death," the threshold of suffering prohibited by the Constitution, according to the court.

But Baze told The New York Times in 2005: "From all accounts that I've read, the stuff is like liquid fire going into your veins ... Taking my life should be enough ... To make me have to live the last few minutes of it in a living hell is beyond comprehension."

As symbols of the anti-death penalty movement, Baze and Bowling hardly make for sympathetic figures.

Baze was convicted of shooting an eastern Kentucky sheriff and deputy three times in the back when the police officers were serving a fugitive warrant against him.

Bowling murdered a husband and wife, and shot their two-year-old son, outside the couple's dry cleaning business in Lexington, Ky.

The Supreme Court's decision to hear their case is "interesting and not insignificant," says Prof. Berman. "To the extent that they have picked one involving two less than sympathetic fellows may make it easier for them to come up with a less than sympathetic ruling," he said.

Court tackles death penalty

RANDY KREHBIEL World Staff Writer

9/26/2007

The Supreme Court hasn’t heard a case regarding execution form since 1878.

The U.S. Supreme Court agreed Tuesday to hear a Kentucky case with far-reaching consequences for Oklahoma and the nation’s 37 other capital punishment states.

“We will be closely watching this case,” said Emily Lang, a spokeswoman for Oklahoma Attorney General Drew Edmondson. “We use the same chemicals as Kentucky. We will be looking at Kentucky’s process to see how closely it mirrors ours.”

The case, Baze v. Rees, alleges that Kentucky’s lethal-injection law violates the Constitution’s Eighth Amendment ban on cruel and unusual punishment. Not since 1878, when firing squads were upheld as an acceptable means of execution, has the court ruled on an Eighth Amendment challenge to a particular form of capital punishment.

Oklahoma is among several states that list firing squad as a back-up form of execution in the event other methods are declared unconstitutional.

“The court has denied hearing cases about the form of execution for more than 100 years,” said University of Tulsa law professor Lyn Entzeroth. “It may be they decided to hear this one because the issue has come up again and again.”

Thirty-seven of the 38 states with death penalty laws use lethal injection. Oklahoma in 1977 was the first state to adopt the procedure, although it was another 13 years before the state actually put anyone to death.

The procedure involves injecting the condemned person with three chemicals — a barbiturate intended to cause unconsciousness, followed by drugs that stop breathing and the heart. It is supposed to be quick and painless, but several cases of botched executions taking as much as two hours to complete have been reported in recent years.

Most of these have involved difficulty finding suitable veins for the injections or miscalculating the barbiturate dosage. Oklahoma has reported no such cases.

“Any method of execution is cruel and unusual if it’s done poorly,” said the Rev. Bill Wiseman Jr. “The only time I’m aware of any problem (with lethal injection) is when they don’t do it right.”

Now vicar of the Church of the Holy Cross in Owasso, as a young legislator Wiseman wrote Oklahoma’s lethal injection bill. That bill became the model for lethal injection laws nationwide.

Although Wiseman has since said he has reservations about capital punishment, he seems to still think lethal injection is the most humane method available.

“I’m fairly confident I know what the court will decide,” he said during a telephone conversation Tuesday afternoon. “I think they’ll decide that a person being executed has the right for the procedure to be done correctly.”

Oklahoma has carried out 86 lethal injections since resuming executions in 1990 after a 24-year hiatus. Eightytwo executions were performed from 1915 to 1966, when Oklahoma used an electric chair.

In 1972, the U.S. Supreme Court ruled that death penalty laws as then enforced were “capricious and arbitrary,” effectively outlawing the practice in the United States.

Four years later, however, the high court upheld new death penalty laws in Florida, George and Texas, and within a short time 38 states, including Oklahoma, reinstated capital punishment.

Oklahoma ranks third behind Texas and Virginia in the number of executions since 1976. The most recent execution was on Aug. 21, when Frank Welch was put to death. No further executions are scheduled, but the Oklahoma Department of Corrections lists 80 deathrow inmates.

One of them, Charles Taylor, has challenged Oklahoma’s lethal injection law in Oklahoma’s U.S. Western District Court. Taylor was convicted in Pittsburg County of the 1995 murder of Michael Sauer.


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A brief history


1608 — First recorded execution in American history at Jamestown, Va.

1878 — U.S. Supreme Court rules execution by firing squad constitutional.


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Execution timeline


1890 — First U.S. execution by electric chair.

1915 — First execution at the Oklahoma State Penitentiary in McAlester; previously, executions were carried out by county sheriffs.

1924 — First U.S. execution by cyanide gas.

1966 — James French put to death in electric chair; last Oklahoma execution for 24 years.

1968 — National moratorium on executions begins.

1972 — U.S. Supreme Court, in Furman v. Georgia, rules application of death penalty has been arbitrary and capricious, effectively outlawing capital punishment; Congress and 38 states subsequently pass laws separating the sentencing judgment phases of capital proceedings.

1976 — U.S. Supreme Court rules constitutional new death penalty laws in Florida, Georgia and Texas; Oklahoma reinstates capital punishment.

1977 — Utah firing squad executes Gary Gilmore; first U.S. execution since 1968. Oklahoma passes lethal injection bill that becomes model for similar laws nationwide.

1982 — First U.S. execution by lethal injection carried out in Texas.

1990 — Charles Troy Coleman becomes first prisoner executed under Oklahoma’s lethal injection law; state’s first execution of any kind since 1966.

Aug. 21, 2007 — Frank Welch becomes 86th person executed by lethal injection in Oklahoma since 1990.

Sept. 25, 2007 — Oklahoma Department of Corrections lists 80 death row prisoners.


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Randy Krehbiel 581-8365
randy.krehbiel@tulsaworld.com

Saturday 29 September 2007

Are lethal injections cruel?

Posted by Michael Mayo at 11:18 AM

I don’t know if death by lethal injection is “cruel and unusual punishment,” which would violate the Eighth Amendment of the U.S. Constitution. All I know is that Florida has offered condemned inmates a choice of lethal injection or the electric chair since 2000, and all 20 have chosen the needle.

That’s some telling anecdotal evidence the U.S. Supreme Court might want to consider, now that it has agreed to hear a case challenging executions by lethal injection.

I’ve witnessed two of the 20 executions by lethal injection that Florida has carried out (Aileen Wuornos and Danny Rolling), and the process was disturbingly antiseptic and serene. Neither seemed to suffer, a fact that brought much dissatisfaction to the families of their victims that had come to watch. The whole thing was like watching a rabid dog being put down.

But something obviously went wrong in the death chamber at Starke last December, when Angel Nieves Diaz’s execution lasted an excruciating 34 minutes and witnesses say he appeared to grimace after the three chemicals began to flow. The first chemical is supposed to induce unconsciousness, the second causes paralysis and the third stops the heart.

Death penalty opponents say the process can go awry if the needle isn’t properly inserted into a vein, something that happened to an obese killer in Ohio. Other complications can arise because the executioners often have no formal medical training.

Jeb Bush halted Florida executions after the Diaz incident, appointing a commission to review the process. It recommended changes to the chemical mix.

Gov. Charlie Crist signed his first death warrant in July, ordering the execution of Mark Dean Schwab on Nov. 15. He has since signed another two death warrants.

To me, the death penalty inherently seems “cruel and unusual” but the U.S. Supreme Court ruled otherwise when it reinstated capital punishment in 1976. I've waffled on the death penalty through the years, because victims' families are so vocal in saying it helps ease their pain, and their feelings have to account for something.

But I still think we'd be nobler as a society if we just locked up killers for life with no possibility of parole, a pretty bleak fate and one that doesn't lower us to their level.

If there's going to be a death penalty, lethal injection is probably the best choice of a bad bunch. The electric chair seems especially barbaric, even though courts have upheld their use. Florida came up with an alternative to the electric chair after a series of grisly executions in the late 1990s, replete with flames shooting from hoods and blood.

Florida has executed 64 people in the last three decades, but the application of the death penalty seems arbitrary and inconsistent. There are now 383 inmates on Florida’s Death Row.

At the current average of 2 executions a year, it would take 191 years to finish off everyone already there. Not going to happen.

The Supreme Court will not take up the broader issue of the death penalty overall, just the question of injections.

At the very least, Crist and the state should delay all executions until the Supreme Court rules.

If the recent 20-0 majority spurning “Old Sparky” is any guide, I bet Florida’s condemned are rooting for the needle.

> Discuss this entry

Lethal Injection Under Scrutiny As Justices Agree to Hear Case

By RON WORD
The Associated Press

JACKSONVILLE | Lethal injection was supposed to be the humane, enlightened way to execute inmates and avoid the pain and the gruesome spectacle of firing squads, the electric chair and the noose.

But now it, too, is under legal attack as cruel and unusual, with the U.S. Supreme Court agreeing this week to hear arguments that lethal injection can cause excruciating pain.

Some supporters of the procedure say the notion that inmates suffer is unproven. And they argue that there is nothing wrong with lethal injection itself; instead, they say, the problem is inadequately trained executioners.

In fact, the man who developed the procedure 30 years ago said it is similar to the simple injections given every day in hospitals.

"What causes it to go wrong is that the protocols aren't carried out properly," said Dr. A. Jay Chapman, former Oklahoma medical examiner.

If an execution is about as simple as an ordinary injection, what, then, can go wrong?

the process

In the three-drug process used by most of the 38 states that practice lethal injection, sodium pentothal is given first as an anesthetic and is supposed to leave the inmate unconscious and unable to feel pain. It is followed by pancuronium bromide, which paralyzes the inmate's muscles, and then potassium chloride, which stops the heart.

Foes of capital punishment argue that if inmates are not properly anesthetized, they could suffer extreme pain without being able to cry out.

That could happen in a number of ways: The executioner could inaccurately calculate the dosage needed for an inmate of a given body weight. Or the executioner could fail to administer the full amount, mix the drug improperly, or wait too long between giving the anesthesia and the lethal substance.

In Missouri, a doctor who participated in dozens of executions was quoted recently as saying he was dyslexic and occasionally altered the amounts of anesthetic given.

A botched execution in Florida last year illustrated another way lethal injection could go awry: Angel Nieves Diaz needed a rare second dose of chemicals - and the execution took twice as long as normal - after the needles were mistakenly pushed clear through his veins and into the flesh of his arm.

That left chemical burns in his arm that opponents say probably caused him pain.

During the process, Diaz appeared to grimace. But he did not specifically say he was suffering. And a state panel was unable to determine whether Diaz had been properly sedated or whether he felt pain.

There is no direct proof that inmates have suffered while undergoing lethal injection.

But opponents of lethal injection often cite a 2005 study in the British medical journal The Lancet indicating that the anesthetic can wear off before an inmate dies. The study involved 49 U.S. executions. In 21 of the deaths, the study found, inmates were probably conscious when they received the final drug that stops the heart.

what can states do?

One major issue is how to measure the inmate's level of consciousness after the anesthetic is given.

Execution opponents say they think North Carolina is the only state using a device common in operating rooms to measure brain activity.

The state Corrections Department anesthetizes the inmates and waits for their brain activity to dip to a level indicating they are sedated before pushing in the lethal drug.

Fordham Law School professor Deborah Denno said the problems she sees with executions cannot be easily fixed with technology.

"You need to get better people, get better drugs and have more scrutiny of the process," said Denno.

Similarly, Richard Dieter, executive director of the Washington-based Death Penalty Information Center, which opposes executions, said lethal injection is essentially "a medical procedure being performed by nonmedical persons. These are drugs and procedures borrowed from operating rooms."

But many states find it hard to get doctors to take part because the American Medical Association's code of ethics bars members from participating in executions.

Chapman scoffed at the idea that executioners need to go to medical school to do the job right, saying people could easily be trained.

Defense Calls Sister In Penalty Phase Of Humphreys Trial

BRUNSWICK, GA (AP) -- Jurors in Brunswick listened today as the sister of Stacey Ian Humphreys pleaded with them to spare her brother's life when he is sentenced for the deaths of two real estate agents in Cobb County.

Dayna Knowles told jurors that Humphreys underwent physical and verbal abuse as a child. She asked the jury not to sentence him to death. Testimony in the penalty phase of the trial has wrapped up, with closing arguments set for this afternoon.

Jurors heard earlier this week from family and friends of 33-year-old Cyndi Williams and 21-year-old Lori Brown as they spoke about their grief nearly four years after the women were killed.

The jury convicted the 34-year-old Humphreys of malice murder Tuesday. The 10 woman and two men must decide if Humphreys will be sentenced to life in prison or death by lethal injection.

The trial was moved from Cobb County to coastal Georgia because of pre-trial publicity.



Associated Press

Thursday 27 September 2007

Texas, Alabama executions set despite Supreme Court review

By MICHAEL GRACZYK Associated Press

LIVINGSTON — Lawyers for two murderers set to die by lethal injection Thursday say the executions should be delayed because of the U.S. Supreme Court's plans to review that method of capital punishment, but officials in both states involved intend to press ahead.
In Texas, attorneys for Carlton Turner Jr. hurriedly prepared appeals Wednesday challenging lethal injection.

In Alabama, attorneys for Tommy Arthur are seeking a stay of his execution not only because of the high court's plans, but because Gov. Bob Riley decided Wednesday to change the state's lethal injection procedures. The procedures can't be changed in time for Thursday's scheduled execution, but state officials say the procedures already in place are constitutional.

The Supreme Court announced Tuesday that it will hear a challenge early next year from two inmates on death row in Kentucky — Ralph Baze and Thomas Clyde Bowling Jr. — who claim that lethal injection as practiced by the state amounts to cruel and unusual punishment, in violation of the Eighth Amendment.

Legal experts say it's unlikely the high court will issue a national moratorium while the case is considered. It declined to halt Tuesday's execution of Michael Richard in Texas, conducted just hours after it announced it would review the Kentucky case.

Doug Berman, a sentencing expert at Ohio State University's law school, said he expects some state courts to stop executions while awaiting the outcome of the Kentucky case.
If neither execution scheduled for Thursday is stopped, he said, "It will be a pretty strong statement that it's business as usual."

One possible explanation for the Supreme Court's decision to accept the Kentucky appeal, yet allow other lethal injection executions to proceed, lies in the different number of votes needed to take a case and block an execution.

Supreme Court rules require just four votes to accept a case but five justices to block an execution.

"It's possible there is not a fifth vote to grant a stay of execution pending resolution of the case," said Carol Steiker, a Harvard Law School expert in criminal law.

Every state that uses lethal injections employs the same three drugs, but there are differences among the states in the way the drugs are administered, training of executioners who administer them and dosages, Steiker said.

In North Carolina, lawyers for death row inmates asked state leaders to delay action on execution protocol until the Kentucky case is decided. A judge in August ordered the Council of State to reconsider its execution protocol approved in February, but the lawyers now want the council to wait to act on the issue until the high court rules.

Turner, 28, was condemned for the 1998 slayings of his parents in suburban Dallas. He was 19 when authorities said he shot Carlton Turner Sr., 43, and Tonya Turner, 40, several times in the head. He then bought new clothes and jewelry and continued living in the family's Irving home as their bodies decomposed.

Turner would be the 27th inmate in the nation's busiest death penalty state to die this year by lethal injection.

The U.S. Supreme Court on Tuesday refused to review Turner's case, but his attorneys said they were preparing further appeals on the lethal drug issue. Also Tuesday, the Texas Board of Pardons and Paroles, on a 7-0 vote, turned down a request to commute his sentence to life in prison.

In a death row interview last week, Turner acknowledged killing his parents in the home they shared.
"People got killed," Turner said. "I did it. The only thing that matters is I did what I did."
Turner testified at his trial that he shot his father in self-defense because his father abused him but recalled little about killing his mother.

In Alabama, Gov. Riley decided on Wednesday to change the lethal injection procedure to provide additional safeguards to make sure inmates are unconscious before they are administered drugs to stop the lungs and heart, said Jeff Emerson, Riley's communications director. Details of the change are still being worked out, but Emerson said it could include more anesthetic and an additional check for unconsciousness.

In papers filed with the Alabama Supreme Court, Arthur's attorney Suhana Han argued that the planned change in Alabama's procedures should prompt the postponement of his execution. Arthur, 65, is sentenced to die for the 1982 murder-for-hire killing of 35-year-old Troy Wicker of Muscle Shoals.

"At this point, we are hopeful the fact that the state of Alabama is essentially conceding deficiencies in its protocol will help Mr. Arthur gain a stay," she said.
Emerson and Assistant Attorney General Clay Crenshaw said the state is not conceding any deficiencies.

Crenshaw, who opposes a stay, characterized the change as very minor and said it was not in response to Arthur or other inmates challenging Alabama's procedures.

Crenshaw told the Alabama Supreme Court that Arthur has not produced evidence of any execution mishap in an Alabama lethal injection execution or any "cruel or unusual pain" suffered by an inmate during a lethal injection.

Wednesday 26 September 2007

WHEN WILL FLORIDA UNDERSTAND? - FOR IMMEDIATE RELEASE



WHEN WILL FLORIDA UNDERSTAND? - FOR IMMEDIATE RELEASE
Last year when the State of Florida executed Angel Diaz, it set in motion a set of events which gave most the hope that a review of a less than humane system of killing would finally take place. Now, a year later, after what seemed to be an encouraging turn of events, we are sorrowfully faced with protocols which have in essence not changed, protocols which in other states have been reason enough to halt executions. Angel Diaz’s horrifically botched execution, reluctantly but unavoidably, resulted in an investigation of lethal injection procedures in Florida which for years have walked inmates to their death without review. Set against the growing tide of people against the death penalty in the US and the abominable course of events the day Mr. Diaz was murdered, the DOC was pressured into exposing a system which can only be described as a violation of the Eighth Amendment prohibition regarding cruel punishments. Cruel and appalling are the only two words we can use to describe the 34 minute suffering of Angel Diaz.
At this time Florida is preparing itself to proceed with it’s sanctioned killing . Even after a State investigation and a public hearing, very little has changed since Mr. Diaz’s execution. Governor Crist has proceeded to sign the death warrant for Mark Dean Schwab, scheduled to be executed in November, under claims by the Department of Corrections that the State’s execution team has now been trained under new procedures. Nothing could be further from the truth. Experts have been quick to observe that any changes have been hastily made and fall short of the measures necessary to prevent another botched execution. Concerns about the secrecy of the DOC in conducting executions and lack of any detailed outline of the training or qualifications necessary in the execution chamber are still haunting concerns. It appears in fact that one of the few quantifiable changes to procedure is the addition of a clock in the execution chamber which witnesses within and outside the chamber can view, along with making the said chamber brighter so observers can see the procedure more clearly and take better notes. Do these changes constitute serious attempts to revise the system or is their value nothing more than cosmetic? Perhaps just an attempt to mask the fact that nothing at all will change. Neither of these so called changes address the real issue………. what is being done to ensure that the inmate is totally unconscious and not suffering unspeakable pain which he cannot communicate to those around him?
If it is at all possible to set aside the emotional issues when it comes to the death penalty and it’s value as a deterrent to anything, and focus on what we are told are the logistics of this event, we see several issues immerging: issues which have not been addressed. What we are being told by the DOC is that executions will now be presided over by two new ‘trained’ wardens and the chief of the prison where Death Row convicts are housed. Presumably this is to improve efficiency. Yet at no point are the medical aspects of the execution taken into consideration, nor the fact that this essentially medical procedure requires the presence of medically trained personnel to assess the inmate and his level of consciousness at all times. How can a so called constitutionally valid death by lethal injection ever be performed without the presence of medical personnel and sophisticated medical equipment? This requires a clinical setting with detailed protocol in place. We are lead to believe that the level of consciousness of the condemned inmate is left to the law enforcement officer who presumably will shake the prisoner and call his name to determine the level of awareness he has. Unbelievable! Considering the effects of the paralytic drug which has been administered to him and doesn’t permit him to respond while still hearing. How does this conform to the 8th amendment which forbids cruel and unusual punishment in any execution? Recently three federal judges in three very different states of the US have determined that the drug cocktail used to kill an inmate (an anesthetic, something to induce muscle paralysis and something to stop the heart) could cause excruciating pain if an inmate is not sufficiently anesthetized when one or both of the second drugs are administered.
Paralysis, respiratory failure and slow suffocation preventing breathing and thwarting the inmate from crying out surely cannot be the ‘humane’ ending that the DOC alludes to! In addition the 8th Amendment requires the participation of medically qualified personnel and a degree of clinical proficiency, yet the protocols guarantee nothing more than a vague assurance that the Warden will select as executioner someone who is "fully capable of performing the designated functions" . Could there be anything more vague? Last year a memo to the DOC recommended the use of a bispectral index monitor to determine the levels of consciousness required for an inmate to pass without pain; it’s use was declined. Yet again the DOC falls short of it’s so called ‘guarantee’.
What ‘humane’ death are they referring to? Circuit Judge Carven Angel has decided that Angel Diaz’s death was not botched, that he died within a reasonably short time after the chemicals were injected in a manner that was painless and humane. Quite an about face from his previous misgivings that the DOC procedures were laden with irregularities. If we are therefore to believe that a screaming inmate represents an inhumane death then why does the DOC find it necessary to paralyze the inmate so that he cannot cry out in pain? It is doubtful that many individuals subjected to this procedure have been anaesthetized adequately enough to ensure a level of consciousness necessary to not inflict pain and without the paralyzing agent to immobilize their screams, how many deaths would actually be seen as ‘humane’? There is no provision in the so called revised protocol which eliminates the use of this paralyzing agent and no consideration given to the absolute necessity of providing indispensable equipment to monitor consciousness.
And it is cocooned within a set of unchanged practices, that Ian Lightbourne (whose case is being used to litigate the lethal injection issue) has his stay of execution lifted and Mark Schwab faces the chamber. There is no doubt that these executions will happen at the hands of a State who’s only requirement is that the executioner be an adult and who’s procedures are no better than before Angel Diaz was tortured. No killing can ever be ‘humane’ ! Even when performed under the most clinical of circumstances it represents an irreversible trauma to the body which is violent by it’s very nature. Are we to believe that these minor changes are anything more than pro-forma acts after comments made by Judge Angel in the Lightbourne hearings in July? Is it enough that prison officials will take care not to move the gurney onto which a prisoner is strapped during an execution, and watch the inmate's arms for signs that a needle has been ministered? There is more than reasonable doubt about this! The state won't change the chemicals used in executions, despite medical testimony that the three-drug combination could be excruciatingly painful and secrecy shrouds procedures in several states always in an attempt to cover botched executions. Is this practice what we have to look forward to in the future? The public has a right to know how the killing is being carried out, the procedure should be clear and out in the open. The failures in protocol design, implementation, monitoring and review which in the past have led to the unnecessary suffering of at least some of those executed, have not been changed in their essence in Florida. Participation of doctors in protocol design or execution is ethically prohibited; therefore adequate anesthesia cannot be certain. What guarantee is there therefore that unnecessary cruelty and suffering can be prevented? As things are, so little of what really matters has changed and one can only wonder how many more botched executions it will take place before the killing stops.
Contact info:

Florida Support Starke
PO Box 331 Starke
Florida 32091
USA
info@floridasupport.us

Florida Support
Po Box 63
Glandorf, OH
45848 USA
Dianne Abshire
afua@woh.rr.com

Florida Support Europe
Postbox 3509 Mariero
N-4078 Stavanger
Norway
sissel@floridasupport.us
giusi42@hotmail.com

Tuesday 25 September 2007

US Supreme Court to examine legality of lethal injections


US Supreme Court to examine legality of lethal injections

WASHINGTON (AFP) — In a move which could suspend capital punishment in the United States, the Supreme Court agreed Tuesday to consider the constitutionality of lethal injections which are used in almost all US executions.

Amid growing controversy over exactly how lethal injections are administered, the court said it would examine the cases of two men condemned to death in the Southern state of Kentucky.

"It affects virtually everyone on death row," said Richard Dieter, director of the Death Penalty Information Center, who stressed, however, that the court is unlikely to end capital punishment.

"It may be all about a slowdown," he said. "For the next six months or so, we may have executions on hold."

Rights activists argue that lethal injections are often slow and painful and contradict the constitution's ban on "cruel and unusual punishment."

So far this year, 40 of the 41 people executed in the country have been killed by lethal injection, with one choosing the electric chair. In 2006, there were 53 executions in the United States, all but one through lethal injection.

During an execution, three drugs are administered to the condemned person: one to sedate him, one to paralyze him, and one to stop the heart.

However, there is no national protocol for administering the drugs and it is not always done by a medical professional. While the prisoner may appear calm, several studies and botched executions have shown that death may in fact be prolonged and quite painful.

A 2005 study showed only small amounts of sedatives in the bodies of the condemned, leaving open the possibility that they were awake when the other two medications were injected.

In Florida in December, Angel Nieves Diaz, his eyes wide open, grimaced and shook for more than 30 minutes before finally suffering convulsions and dying.

Authorities later found that the needles were inserted too far and the lethal cocktail was injected outside his veins.

Dieter said instead of ordering an end to executions, the Supreme Court is likely to set a minimum standard.

"I don't think the US Supreme Court is about to eliminate the death penalty with this decision," he said. "I think they're going to say what the standards are for lethal injection."

The high court has never ruled on a particular method of execution. Instead, under legal challenge, states that used gas chambers, hanging or electric chairs switched to lethal injection.

"Now the states don't have another method of execution to turn to," said Deborah Denno, professor at Fordham University in New York.

Although the court has refused to consider several similar appeals in recent years, a hearing is expected in early 2008.

SUPPLEMENTAL BRIEF TO PETITION FOR A WRIT OF CERTIORARI

http://www.oranous.com/florida/IanLightbourne/supbriefkentucky.htm

http://www.oranous.com/florida/IanLightbourne/07-5439_pet_supp.pdf


No. 07-5439

_________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________________

RALPH BAZE, ET AL.,

Petitioners

v.

JOHN D. REES, ET AL.,

Respondents

_________________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

_________________________________

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

2

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

3

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.

4

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

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF KENTUCKY

http://www.oranous.com/florida/IanLightbourne/certpetKentucky.htm

http://www.oranous.com/florida/IanLightbourne/07-5439_pet.pdf


No. 06-

_________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________________

RALPH BAZE, ET AL.,

Petitioner

v.

JOHN D. REES, ET AL.,

Respondent

_________________________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

_________________________________

PETITION FOR A WRIT OF CERTIORARI

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

July 11, 2007

ii

CAPITAL CASE

QUESTIONS PRESENTED

They pointed to botched executions in Ohio and Florida that took as long as two hours to complete.


Lethal Injection Challenge Gets Top U.S. Court Review (Update2)

By Greg Stohr

http://www.bloomberg.com/apps/news?pid=20601087&sid=as_5RLBdxMlg&refer=home

Sept. 25 (Bloomberg) -- The U.S. Supreme Court agreed to review the legality of the lethal injection method used by dozens of states, saying it will hear arguments from two Kentucky death- row inmates who say they face unnecessary suffering.

The inmates, Ralph Baze and Thomas C. Bowling, say the state's execution procedure violates the Constitution's ban on cruel and unusual punishment. They pointed to botched executions in Ohio and Florida that took as long as two hours to complete.

``These executions have cast a pall over lethal injections in this country and have lessened the public's confidence in how executions are being carried out,'' they argued in their appeal, filed in Washington.

All but one of the 38 death-penalty states use lethal injection for executions, and almost all of those use the same three chemicals that Kentucky uses. The case is among 17 granted review by the court today ahead of the formal opening of its term Oct. 1.

Kentucky officials, including Attorney General Gregory Stumbo, urged the Supreme Court not to hear the case, calling arguments that a safer execution method exists ``speculative, at best.''

``The trial court found, and the Kentucky Supreme Court unanimously affirmed, that Kentucky's lethal injection protocol did not expose condemned inmates to a substantial risk of wanton or unnecessary pain or suffering,'' the state argued.

Baze was convicted of murdering a Kentucky sheriff and his deputy when they were trying to serve warrants on him in 1992. Bowling was convicted of shooting a couple to death and wounding their 2-year-old son after an automobile accident in 1990. Baze and Bowling aren't challenging their death sentences in the Supreme Court appeal.

The Supreme Court earlier this year said death row inmates can invoke a federal civil rights law to challenge the use of lethal injection. That ruling was unanimous and didn't directly address the constitutionality of the procedure.

The case is Baze v. Rees, 07-5439.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net .

Supreme Court to Consider Lethal Injection

Supreme Court to Consider Lethal Injection

Justices to Decide Kentucky Death Row Cases Challenging the Execution Method

injection chamber
(ABCNEWS)
The Associated Press

The Supreme Court on Tuesday agreed to consider the constitutionality of lethal injections in a case that could affect the way inmates are executed around the country.

The high court will hear a challenge from two inmates on death row in Kentucky -- Ralph Baze and Thomas Clyde Bowling Jr. -- who sued Kentucky in 2004, claiming lethal injection amounts to cruel and unusual punishment.

Baze has been scheduled for execution Tuesday night, but the Kentucky Supreme Court halted the proceedings earlier this month.

The U.S. Supreme Court has previously made it easier for death row inmates to contest the lethal injections used across the country for executions.

But until Tuesday, the justices had never agreed to consider the fundamental question of whether the mix of drugs used in Kentucky and elsewhere violates the Eighth Amendment's ban on cruel and unusual punishment.

All 37 states that perform lethal injections use the same three-drug cocktail, but at least 10 states suspended its use after opponents alleged it was ineffective and cruel, according to the Death Penalty Information Center.

The three consist of an anesthetic, a muscle paralyzer, and a substance to stop the heart. Death penalty foes have argued that if the condemned prisoner is not given enough anesthetic, he can suffer excruciating pain without being able to cry out.

U.S. District Judge Aleta Trauger ruled last week that Tennessee's method of lethal injection is unconstitutional and ordered the state not to execute a death row inmate using that method. The state is still deciding whether to appeal the judge's ruling, but agreed to stop a pending execution.

A ruling from California in the case of convicted killer Michael Morales resulted in the statewide suspension of executions.

States began using lethal injection in 1978 as an alternative to the historic methods of execution: electrocution, gassing, hanging and shooting. Since the death penalty resumed in 1977, 790 of 958 executions have been by injection.

Baze and Bowling sued in 2004 and a trial was held the following spring. A state judge upheld the use of lethal injection and the Kentucky Supreme Court affirmed that decision. The appeal taken up Tuesday by the U.S. Supreme Court stems from that decision.

"This is probably one of the most important cases in decades as it relates to the death penalty," said David Barron, the public defender who represents Baze and Bowling.

The office of the Kentucky attorney general had no comment Tuesday on the case.

Baze, 52, has been on death row for 14 years. He was sentenced for the 1992 shooting deaths of Powell County Sheriff Steve Bennett and Deputy Arthur Briscoe.

Bennett and Briscoe were serving warrants on Baze when he shot them. Baze has said the shootings were the result of a family dispute that got out of hand and resulted in the sheriff being called.

Bowling was sentenced to death for killing Edward and Tina Earley and shooting their 2-year-old son outside the couple's Lexington, Ky., dry-cleaning business in 1990.

Bowling was scheduled to die in November 2004, but a judge stopped it after Bowling and Baze sued over the constitutionality of lethal injection.

Associated Press writer Brett Barrouquere reported from Louisville, Ky.


Orders List and Filings in Today's Grants - USSC

From Scotus blog :


Tuesday, September 25, 2007

Orders List and Filings in Today's Grants

10:30 AM | Ben Winograd | Comments (0)

The Supreme Court granted certiorari in 17 cases this morning. The orders list is here. For each case, you will find links below for the electronic docket and, where available, for the petition for certiorari, brief in opposition, and reply.

Quanta Computer v. LG Electronics (06-937): docket, petition, brief in opposition, reply.

Kentucky Retirement Sys. V. EEOC (06-1037): docket, petition, brief in opposition, reply.

Virginia v. Moore (06-1082): docket, petition, brief in opposition, reply.

Dada v. Keisler (06-1181): docket, petition, brief in opposition, reply.

Gomez-Perez v. Potter (06-1321): docket, petition, brief in opposition, reply.

Ali v. Achim (06-1346): docket, petition, brief in opposition, reply.

Meadwestvaco v. Illinois Dept. of Revenue (06-1413): docket, petition, brief in opposition, reply.

CBOCS West v. Humphries (06-1431): docket, petition, brief in opposition, reply.

Morgan Stanley Capital Group v. Public Utility Dist.1 (06-1457) and Calpine Energy Services v. Public Utility Dist.1 (06-1462): docket, docket, petition, petition, brief in opposition, reply, reply.

Preston v. Ferrer (06-1463): docket, petition, brief in opposition, reply.

Warner-Lambert v. Kent (06-1498): docket, petition, brief in opposition, reply.

Boulware v. United States (06-1509): docket, petition, brief in opposition, reply.

United States v. Rodriquez (06-1646): docket, petition, brief in opposition, reply.

Begay v. United States (06-11543): docket, petition (forthcoming), brief in opposition (forthcoming).

Gonzalez v. United States (06-11612): docket, petition, brief in opposition (forthcoming).

Crawford v. Marion City Election Board (07-21) and Indiana Democratic Party v. Rokita (07-25): docket, docket, petition, petition, brief in opposition, supplemental brief in opposition, reply, reply.

Baze v. Rees (07-5439): docket, petition, supplemental brief to the petition, brief in opposition (forthcoming).


Court grants 17 new cases; voter ID, death penalty review

10:03 AM | Lyle Denniston | Comments (0)

The Supreme Court on Tuesday agreed to add 17 new cases to its new Term's decision docket, including a pair of appeals on the constitutionality of requiring voters to show a photo ID before they may vote (Crawford v. Marion County Election Board, 07-21, and Indiana Democratic Party v. Rokita, 07-25). The Court also agreed to decide the constitutionality of execution by lethal drugs when the chemical protocol poses a risk of pain and suffering (Baze v. Rees, 07-5439).

In another order Tuesday, the Court denied a motion to dismiss a previously granted case -- LaRue v. DeWolff, Boberg & Associates (06-856). The case involves the right of a pension plan participant to sue the plan manager to recover losses that worker suffered in a pension account. The motion to dismiss claimed that the individual involved had cashed-out his account, so there remained no live issue.

Aside from the Indiana voter cases and the Kentucky lethal injection case, these are the docket numbers and summaries of issues in the newly granted cases:

06-937 -- Quanta Computer v. LG Electronics (definition of the exhaustion of patent rights hen licensee sells products containing the patent)
06-1037 -- Kentucky Retirement v. EEOC (age bias in disability benefits packages)
06-1082 -- Virginia v. Moore (lawfulness of search following arrest that violates state law)
06-1181 -- Dada v. Keisler (postponement of agreement for alien to voluntarily leave U.S.)
06-1321 -- Gomez-Perez v. Potter (federal employees protection against retaliation for complaining about age bias in workplace)
06-1346 -- Ali v . Achim (definition of aggravated felony for deportation purposes)
06-1413 -- MeadWestvaco v. Illinois Revenue Dept. (tax on sale of investment in LexisNexis)
06-1431 -- CBOCS West v. Humphries (race retaliation claim under Sec. 1981 of civil rights law)
06-1457 and 1462 -- Morgan Stanley v. Public Utility Dist. 1, Calpiine Energy Services v. PUD 1 (federal regulators' power to take an energy crisis into account in reviewing electric power sale contracts)
06-1463 -- Preston v. Ferrer (preemption of arbitration agreement)
06-1498 -- Warner-Lambert v. Kent (preemption of claim of fraud on a federal agency)
06-1509 -- Boulware v. U.S. (taxation on diversion of corporate funds to shareholder)
06-1646 -- U.S. v. Rodriquez (crimes that qualify for enhanced sentence under armed career criminal law; specific issue involves state drug crime conviction)
06-11543 -- Begay v. U.S. (whether felony drunk driving is a violent felony for purposes of enhanced sentencing under armed career criminal law)
06-11612 -- Gonzalez v. U.S. (waiver of right to Art. III judge to preside over jury selection when counsel agreed to have a U.S. magistrate instead)


Today at the Supreme Court: 9.25.07

09:00 AM | Ben Winograd | Comments (0)

The Court is scheduled to release orders at 10 a.m. Eastern of cases granted at yesterday's conference. We will provide coverage as soon as the list becomes available.


Monday, September 24, 2007

Military commissions' powers broadened

07:28 PM | Lyle Denniston | Comments (0)

A special military appeals court ruled on Monday that judges who preside over "military commissions" have the power to decide on their own who is an "unlawful enemy combatant" and thus can be tried on charges of war crimes. Deciding its first case in a way that gives the Pentagon a major -- but not a complete -- legal victory, a three-judge panel of the U.S. Court of Military Commission Review set the stage for a new review of the status of a 20-year-old Canadian, Omar Ahmed Khadr. If, as seems likely, a judge or a military commission concludes that he is an illegal combatant, that would revive charges that he killed a U.S. serviceman in Afghanistan fighting in 2002, along with other terrorism-related charges.

Khadr had been charged by the Pentagon in April 2007, some two years and nine months after he had been found to be an "enemy combatant" by a military panel -- formally, a Combatant Status Review Tribunal. But, last June 4, a military judge in Guantanamo Bay, Cuba, where Khadr is being held, threw out all of the charges. The judge, Army Col. Peter E. Brownback, was the presiding officer of a military commission set up to try Khadr.

The judge found that the only individuals who can be tried before military commissions are those found to be "unlawful enemy combatants"; it was not enough, the judge concluded, for the CSRT to have found Khadr simply to be an "enemy combatant." Moreover, the judge added, neither he nor the military commission itself could decide on their own that Khadr's status was that of an "unlawful" combatant. Since the commission had no jurisdiction, Khadr could not be tried, according to the judge. (A second judge also threw out war crimes charges against a Yemeni national, Salim Ahmed Hamdan; the Pentagon has not appealed that ruling, but it is likely to be overturned on the basis of Monday's decision by the CMCR.)

Judge Brownback's main conclusion threatened the prospect that the military might have to conduct new CSRT proceedings, perhaps in more than 550 cases of Guantanamo prisoners.

But the Pentagon was spared any new round of review in the CSRTs by the CMCR conclusion that Judge Brownback did have jurisdiction to decide on Khadr's status, and thus to proceed to try him. Its ruling came after an appeal filed by the Pentagon. Significantly, in other parts of its ruling (discussed below), the appeals court stripped the CSRTs of some of the authority that the Pentagon had claimed they had.

The ruling can be downloaded here. In a second decision released Monday, the CMCR concluded that its three members were validly appointed, so they had authority to decide the case. (That separate ruling is here.)

The Pentagon did not win on all points at issue, however. The appeals court rejected the Pentagon argument that there was no legal difference between a finding of an "enemy combatant" by a CSRT and an "unlawful enemy combatant." The former can be captured and held during a conflict, but cannot be charged with crimes, it ruled. Only an "unlawful enemy combatant" may be charged, it concluded, citing "the well recognized body of customary international law."

The appeals court also upheld Judge Brownback's conclusion that the CSRT finding of "enemy combatant" was not sufficient to set up a trial before a commission. It thus rejected the Pentagon conclusion that prior statements by President Bush and other high officials were sufficient to turn anyone accused of ties to the Al Qaeda terrorist network or to the Taliban into an "unlawful enemy combatant." Congress, in creating war crimes commissions in the Military Commissions Act of 2006, spoke clearly on the subject, CMCR concluded.

Continue reading "Military commissions' powers broadened" »


D.C. opposes gun access plea

04:38 PM | Lyle Denniston | Comments (0)

The local government of Washington, D.C., on Monday urged the D.C. Circuit Court not to "interfere" with the Supreme Court's coming action on the city's gun control law, arguing that an existing order temporarily allowing enforcement of that law should be left intact. City officials were responding to a request by a local resident to allow him and others living in the capital city to have immediate access to rifles and shotguns in functioning condition, for self-defense use.

The opposition brief can be found here

The Supreme Court has not yet acted upon the city government's appeal (District of Columbia v. Heller, 07-290), seeking to overturn a Circuit Court ruling last March that the handgun ban -- one of the strictest gun control laws in the nation -- violates the Second Amendment. Attorneys for local resident Dick Anthony Heller, who had successfully challenged the pistol ban, have until Oct. 5 to reply to the city appeal, but are expected to file before that date.

In the meantime, Heller's attorneys took the unusual step of asking the Circuit Court to put into effect immediately a part of the local gun ordinance that requires owners of rifles and shotguns kept at home to be disassembled or have a trigger lock in place. Contending that the city had conceded that that part of the law could not be enforced if rifles and shotguns were used for self-defense, Heller's counsel said the Circuit Court should partially lift a stay of its ruling while Supreme Court action was awaited. An earlier post discussing this request in the Circuit Court can be found here.

Responding Monday, city officials said that they had made no concession that the disassembly-or-lock provision was invalid. And, they contended, if the Supreme Court were to side with the District's constitutional position, that part of the local law, too, would be upheld. Once again, though, officials noted that they do not contend that legally owned rifles and shotguns kept at home could not be used in self-defense. But they said that situation should not be compelled by the Second Amendment, as they said the Circuit Court had ruled.

To partially lift the temporary stay of enforcement on the gun law, officials told the Circuit Court, would be to split the case -- with part of it going forward in lower federal courts, while the Supreme Court was considering the city's pending appeal on the constitutional question. Federal court rules, they asserted, seek to prevent "such inefficient and undesirable proceedings."

The stay issued by the Circuit Court, putting off the effect of its ruling against the local law, "should continue until the Supreme Court has disposed of this case," the brief said.

As a practical matter, the city brief added, there is only a "distinctly remote" chance that Heller would have to use a rifle or shotgun to defend himself at home, and there is no likelihood that he would be prosecuted while the case is pending before the Supreme Court. No one has ever been prosecuted in the city for using a lawful weapon in self-defense, it noted.

Heller, the city added on another point, had agreed earlier to the stay of the Circuit Court ruling, to await the outcome of Supreme Court action. "The material circumstances have not changed," the city said. "As a consequence, neither should the status quo."

USSC order list

(ORDER LIST: 551 U.S.)
TUESDAY, SEPTEMBER 25, 2007
ORDERS IN PENDING CASES
06-43 STONERIDGE INVESTMENT V. SCIENTIFIC-ATLANTA, INC., ET AL.
The motion of the Solicitor General for leave to participate
in oral argument as amicus curiae and for divided argument is
granted. Justice Breyer took no part in the consideration or
decision of this motion.
06-713 ) WASHINGTON STATE GRANGE V. WA REPUBLICAN PARTY, ET AL.
)
06-730 ) WASHINGTON, ET AL. V. WA REPUBLICAN PARTY, ET AL.
The motion of petitioners for divided argument is denied.
06-856 LaRUE, JAMES V. DeWOLFF, BOBERG & ASSOC., INC.
The motion of the Solicitor General for leave to participate
in oral argument as amicus curiae and for divided argument is
granted. The motion of respondents to dismiss the writ of
certiorari is denied.
06-984 MEDELLIN, JOSE E. V. TEXAS
The motion of the Solicitor General for leave to participate
in oral argument as amicus curiae and for divided argument is
granted.
06-7949 GALL, BRIAN M. V. UNITED STATES
The motion of petitioner for appointment of counsel is
granted. Jeffrey T. Green, Esquire, of Washington, D.C., is
appointed to serve as counsel for the petitioner in this case.
06-8273 DANFORTH, STEPHEN V. MINNESOTA
The motion of Kansas for leave to participate in oral

argument as amicus curiae and for divided argument is denied.
06-9130 ALI, ABDUS-SHAHID M. S. V. FED. BUREAU OF PRISONS, ET AL.
The motion of petitioner for appointment of counsel is
granted. Jean-Claude Andre, Esquire, of Los Angeles,
California, is appointed to serve as counsel for the petitioner
in this case.
CERTIORARI GRANTED
06-937 QUANTA COMPUTER, INC., ET AL. V. LG ELECTRONICS, INC.
06-1037 KENTUCKY RETIREMENT SYS., ET AL. V. EEOC
06-1082 VIRGINIA V. MOORE, DAVID L.
The petitions for writs of certiorari are granted. The
briefs of petitioners are to be filed with the Clerk and served
upon opposing counsel on or before 2 p.m., Monday, November 5,
2007. The briefs of respondents are to be filed with the Clerk
and served upon opposing counsel on or before 2 p.m., Monday,
December 3, 2007. Reply briefs, if any, are to be filed with
the Clerk and served upon opposing counsel on or before 2 p.m.,
Friday, December 28, 2007. Briefs of amici curiae are to be
filed with the Clerk and served upon counsel for the parties on
or before 2 p.m., 7 days after the brief for the party
supported is filed, or if in support of neither party, within 7
days after the petitioner’s brief is filed.
06-1181 DADA, SAMSON T. V. KEISLER, ACTING ATT'Y GEN.
The petition for a writ of certiorari is granted limited to
the following Question: "Whether the filing of a motion to
reopen removal proceedings automatically tolls the period within
which an alien must depart the United States under an order
granting voluntary departure." The brief of petitioner is to be

filed with the Clerk and served upon opposing counsel on or
before 2 p.m., Monday, November 5, 2007. The brief of
respondent is to be filed with the Clerk and served upon
opposing counsel on or before 2 p.m., Monday, December 3, 2007.
A reply brief, if any, is to be filed with the Clerk and served
upon opposing counsel on or before 2 p.m., Friday, December 28,
2007. Briefs of amici curiae are to be filed with the Clerk and
served upon counsel for the parties on or before 2 p.m., 7 days
after the brief for the party supported is filed, or if in
support of neither party, within 7 days after the petitioner's
brief is filed.
06-1321 GOMEZ-PEREZ, MYRNA V. POTTER, POSTMASTER GEN.
06-1346 ALI, AHMED V. ACHIM, DEBORAH, ET AL.
06-1413 MEADWESTVACO CORP. V. IL DEPT. OF REVENUE, ET AL.
06-1431 CBOCS WEST, INC. V. HUMPHRIES, HEDRICK G.
The petitions for writs of certiorari are granted. The
briefs of petitioners are to be filed with the Clerk and served
upon opposing counsel on or before 2 p.m., Monday, November 5,
2007. The briefs of respondents are to be filed with the Clerk
and served upon opposing counsel on or before 2 p.m., Monday,
December 3, 2007. Reply briefs, if any, are to be filed with
the Clerk and served upon opposing counsel on or before 2 p.m.,
Friday, December 28, 2007. Briefs of amici curiae are to be
filed with the Clerk and served upon counsel for the parties on
or before 2 p.m., 7 days after the brief for the party
supported is filed, or if in support of neither party, within 7
days after the petitioner’s brief is filed.

06-1457 ) MORGAN STANLEY CAPITAL GROUP V. PUBLIC UTILITY DIST. 1, ET AL.
)
06-1462 ) CALPINE ENERGY SVCS., ET AL. V. PUBLIC UTILITY DIST. 1, ET AL.
The motion of Golden State Water Company for disqualification
of counsel in No. 06-1457 is denied. The petitions for writs of
certiorari are granted. The cases are consolidated and a total
of one hour is allotted for oral argument. The brief of
petitioners is to be filed with the Clerk and served upon
opposing counsel on or before 2 p.m., Monday, November 5, 2007.
The brief of respondents is to be filed with the Clerk and
served upon opposing counsel on or before 2 p.m., Monday,
December 3, 2007. A reply brief, if any, is to be filed with
the Clerk and served upon opposing counsel on or before 2 p.m.,
Friday, December 28, 2007. Briefs of amici curiae are to be
filed with the Clerk and served upon counsel for the parties on
or before 2 p.m., 7 days after the brief for the party supported
is filed, or if in support of neither party, within 7 days after
the petitioners’ brief is filed. The Chief Justice and Justice
Breyer took no part in the consideration or decision of this
motion and these petitions.
06-1463 PRESTON, ARNOLD M. V. FERRER, ALEX E.
The petition for a writ of certiorari is granted. The brief
of petitioner is to be filed with the Clerk and served upon
opposing counsel on or before 2 p.m., Monday, November 5, 2007.
The brief of respondent is to be filed with the Clerk and
served upon opposing counsel on or before 2 p.m., Monday,
December 3, 2007. A reply brief, if any, is to be filed with
the Clerk and served upon opposing counsel on or before 2 p.m.,
Friday, December 28, 2007. Briefs of amici curiae are to be

filed with the Clerk and served upon counsel for the parties on
or before 2 p.m., 7 days after the brief for the party
supported is filed, or if in support of neither party, within 7
days after the petitioner’s brief is filed.
06-1498 WARNER-LAMBERT CO., ET AL. V. KENT, KIMBERLY, ET AL.
The petition for a writ of certiorari is granted. The brief
of petitioners is to be filed with the Clerk and served upon
opposing counsel on or before 2 p.m., Monday, November 5, 2007.
The brief of respondents is to be filed with the Clerk and
served upon opposing counsel on or before 2 p.m., Monday,
December 3, 2007. A reply brief, if any, is to be filed with
the Clerk and served upon opposing counsel on or before 2 p.m.,
Friday, December 28, 2007. Briefs of amici curiae are to be
filed with the Clerk and served upon counsel for the parties on
or before 2 p.m., 7 days after the brief for the party
supported is filed, or if in support of neither party, within 7
days after the petitioners’ brief is filed. The Chief Justice
took no part in the consideration or decision of this petition.
06-1509 BOULWARE, MICHAEL H. V. UNITED STATES
The petition for a writ of certiorari is granted limited to
the following Question: "Whether the diversion of corporate
funds to a shareholder of a corporation without earnings and
profits automatically qualifies as a non-taxable return of
capital up to the shareholder's stock basis, see 26 U.S.C.
§301(c)(2), even if the diversion was not intended as a return
of capital." The brief of petitioner is to be filed with the
Clerk and served upon opposing counsel on or before 2 p.m.,
Monday, November 5, 2007. The brief of respondent is to be

filed with the Clerk and served upon opposing counsel on or
before 2 p.m., Monday, December 3, 2007. A reply brief, if any,
is to be filed with the Clerk and served upon opposing counsel
on or before 2 p.m., Friday, December 28, 2007. Briefs of amici
curiae are to be filed with the Clerk and served upon counsel
for the parties on or before 2 p.m., 7 days after the brief for
the party supported is filed, or if in support of neither party,
within 7 days after the petitioner's brief is filed.
06-1646 UNITED STATES V. RODRIQUEZ, GINO G.
The petition for a writ of certiorari is granted. The brief
of petitioner is to be filed with the Clerk and served upon
opposing counsel on or before 2 p.m., Monday, November 5, 2007.
The brief of respondent is to be filed with the Clerk and
served upon opposing counsel on or before 2 p.m., Monday,
December 3, 2007. A reply brief, if any, is to be filed with
the Clerk and served upon opposing counsel on or before 2 p.m.,
Friday, December 28, 2007. Briefs of amici curiae are to be
filed with the Clerk and served upon counsel for the parties on
or before 2 p.m., 7 days after the brief for the party
supported is filed, or if in support of neither party, within 7
days after the petitioner’s brief is filed.
06-11543 BEGAY, LARRY V. UNITED STATES
The motion of petitioner for leave to proceed in forma
pauperis and the petition for a writ of certiorari are granted.
The brief of petitioner is to be filed with the Clerk and served
upon opposing counsel on or before 2 p.m., Monday, November 5,
2007. The brief of respondent is to be filed with the Clerk
and served upon opposing counsel on or before 2 p.m., Monday,

December 3, 2007. A reply brief, if any, is to be filed with
the Clerk and served upon opposing counsel on or before 2 p.m.,
Friday, December 28, 2007. Briefs of amici curiae are to be
filed with the Clerk and served upon counsel for the parties on
or before 2 p.m., 7 days after the brief for the party
supported is filed, or if in support of neither party, within 7
days after the petitioner’s brief is filed.
06-11612 GONZALEZ, HOMERO V. UNITED STATES
The motion of petitioner for leave to proceed in forma
pauperis and the petition for a writ of certiorari are granted
limited to the following Questions: "1) Must a federal criminal
defendant explicitly and personally waive his right to have an
Article III judge preside over voir dire? 2) Did the court of
appeals err when it reviewed petitioner's objection for plain
error?" The brief of petitioner is to be filed with the Clerk
and served upon opposing counsel on or before 2 p.m., Monday,
November 5, 2007. The brief of respondent is to be filed with
the Clerk and served upon opposing counsel on or before 2 p.m.,
Monday, December 3, 2007. A reply brief, if any, is to be filed
with the Clerk and served upon opposing counsel on or before 2
p.m., Friday, December 28, 2007. Briefs of amici curiae are to
be filed with the Clerk and served upon counsel for the parties
on or before 2 p.m., 7 days after the brief for the party
supported is filed, or if in support of neither party, within 7
days after the petitioner's brief is filed.

07-21 ) CRAWFORD, WILLIAM, ET AL. V. MARION CTY. ELECTION BD., ET AL.
)
07-25 ) IN DEMOCRATIC PARTY, ET AL. V. ROKITA, IN SEC. OF STATE, ET AL.
The petitions for writs of certiorari are granted. The
cases are consolidated and a total of one hour is allotted
for oral argument. The brief of petitioners is to be filed
with the Clerk and served upon opposing counsel on or before 2
p.m., Monday, November 5, 2007. The brief of respondents is
to be filed with the Clerk and served upon opposing counsel on
or before 2 p.m., Monday, December 3, 2007. A reply brief, if
any, is to be filed with the Clerk and served upon opposing
counsel on or before 2 p.m., Friday, December 28, 2007. Briefs
of amici curiae are to be filed with the Clerk and served upon
counsel for the parties on or before 2 p.m., 7 days after the
brief for the party supported is filed, or if in support of
neither party, within 7 days after the petitioners’ brief is
filed.
07-5439 BAZE, RALPH, ET AL. V. REES, COMM'R, KY DOC, ET AL.
The motion of petitioners for leave to proceed in forma
pauperis and the petition for a writ of certiorari are granted.
The brief of petitioners is to be filed with the Clerk and
served upon opposing counsel on or before 2 p.m., Monday,
November 5, 2007. The brief of respondents is to be filed with
the Clerk and served upon opposing counsel on or before 2 p.m.,
Monday, December 3, 2007. A reply brief, if any, is to be
filed with the Clerk and served upon opposing counsel on or
before 2 p.m., Friday, December 28, 2007. Briefs of amici
curiae are to be filed with the Clerk and served upon counsel
for the parties on or before 2 p.m., 7 days after the brief for

the party supported is filed, or if in support of neither party,
within 7 days after the petitioners’ brief is filed.
CERTIORARI DENIED
07-5058 CHI, HELIBERTO V. QUARTERMAN, DIR., TX DCJ
07-5425 TURNER, CARLTON A. V. QUARTERMAN, DIR., TX DCJ
The petitions for writs of certiorari are denied.