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
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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
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