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Rutherford on Remand


The Eleventh Circuit has issued a split decision in the case of Rutherford v. McDonough, a companion case to Hill v. McDonough, the lethal injection case decided by the Supreme Court on June 12. Judges Carnes and Hull are more than a little ticked off at counsel for Rutherford, who among other things petitioned the Supreme Court for a writ of mandamus ordering the Eleventh Circuit to expedite its decision without (1) first asking the Eleventh itself to do so; or (2) mentioning to the Supreme Court that counsel herself had contributed to the delay by taking a vacation in the middle of the briefing and then asking for an extension. They are also displeased that the Governor signed a death warrant three days before this mandamus petition and no one bothered to tell them.

In substance, the opinion follows that of another Eleventh Circuit panel in the case of the late Clarence Hill. You can't wait until the eve of execution to challenge a method adopted five years earlier. Judge Wilson dissents.

Thanks to Dave Pancione for bringing this decision to our attention.


The dissent has some serious problems.

1) The distinction made by the dissent regarding factual and legal bases of Rutherford's claim is nonsense. The claim is that lethal injection causes unnecessary and a great deal of pain and therefore would violate the 8th Amendment. Given the creativity employed by our friends in the capital defense bar, it is simply unbelievable that no possible claim (in federal or state court) could have been filed soon after the appearance of the Lancet article. (Remember too, that state courts are competent to hear federal constitutional claims, which I why I would argue that abstention doctrines should be seriously considered.) Since when does the capital defense bar take no for an answer?

2) It is interesting how the Lancet article is supposedly the point at which the factual bases of lethal injection challenges started. Lethal injection claims have been percolating for years now.

3) The dissent also blurs the standards for when the clock starts ticking. Equity aids the vigilant. The vigilant do not wait until some article appears in a medical publication. Lethal injection has been the law in Florida since 2000--certainly, Rutherford's claim could have been raised far earlier, as the basics of lethal injection were common knowledge in 2000.

Does anyone know if Rolling has filed his own 1983 claim?

Picture this: Rutherford sits on death row, contemplating his demise by lethal injection, but assumes without hestitation that the cocktail chosen by Warden certainly would not give him the slightest discomfort, while the violins play a peaceful tune during his final living moments. No need to check things out. To his horror, he learns from the Lancet article that his cocktail will be too light on the anesthesia. Should he spring to action and insist that the Warden pour him a double? No, he decides to lay low, because he's sure the Warden and the Courts will insure, without him bringing it up, that his demise will be serene. As he steels himself in the few days before the end, he is aghast to learn that the Warden and the Courts have done nothing. He is then compelled, at the last minute, to bring a court action to force the Warden to double up on the anesthesia. But then, the lazy judges don't drop everything to work on his case, so he has to tattle on them to the US Supremes. And, all the while, his intentions are pure, and his only mistake was to assume that the Warden would do the right thing, and that the Circuit Court wouldn't be lazy.
Some might think this scenario is a laughable fanatasy. Some, perhaps the Rutherford dissenter, might think this scenario is deadly serious fact.

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