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.