Last Friday, this post at Capital Defense Weekly said, "Monday’s order list will give a better understanding of which challenges may or may not meet the plurality’s standard." Yes, I think so. Over at SCOTUSblog, Lyle Denniston writes, "The Supreme Court, without a specific explanation of why it was doing so, chose a single path on Monday in dealing with" a slew of capital cases. The number of capital cases the Court turned down is reported as 11 by Lyle and by an AP story. However, I count 14, including a rehearing denial. The cases are listed at the end of this post.
Lyle seems surprised that the Court gave no explanation for its actions. I do not find this remarkable. The Court usually does not give a reason for denial of certiorari. Moreover, looking at the lower court opinions, none are obviously "certworthy" in light of the Baze opinion's rejection of most of the defense arguments.
Lyle devotes a paragraph to Berry, noting that the petitioner filed a supplemental post-Baze brief and that the Court didn't mention the brief. However, as previously noted here, the brief was irrelevant to the basis of the decision below, which was that Berry's eve-of-execution suit was untimely. This was so obvious that the state did not even bother to respond. Cooey and Biros are similar. The Sixth Circuit held that the statute of limitations had run. Nothing in Baze requires reconsideration of that holding. The USCA11 decision in Arthur was also on timeliness grounds.
The USCA decisions in Bower, Crowe, and Middleton and the Florida Supreme Court decision in Johnson are just regular capital case decisions with no mention of lethal injection. If an injection claim was added at the rehearing or certiorari petition stage (I don't have access to those documents), it would have been untimely.
The USCA8 decision in Taylor is clearly correct on the law in light of Baze. The CA held that Taylor had not shown a substantial risk, and Baze held that was a threshold requirement. No need to review this decision any further.
That leaves the state court decisions in Williams, Walker, Frazier, and Velazquez. These are all cases where the state court summarily rejected a method-of-execution claim. Walker, for example, simply says, "The trial court did not err in rejecting Walker's claim that lethal injection is unconstitutional, as Walker proffered no evidence to sustain his claim." In Williams, on the other hand, the trial court considered evidence produced in another case, so there is some factual record on the state's recently revised protocol. Even so, the state court rejected the claim with cites to earlier decisions going back to Dawson v. State, 274 Ga. 327 (2001), in which it through out the electric chair and upheld the alternative of lethal injection. Frazier and Velazquez are also terse denials based on precedents.
Conceivably, if the Court had understood its Baze opinion as merely opening the door to more injection litigation, as Justice Stevens claimed, it might have vacated the decisions in one or more of these state cases and remanded for reconsideration in light of Baze. On the other hand, a vacate-and-remand is unnecessary if Baze resolves as much as the plurality says it does. This, I suspect, is the answer to the question I asked Monday on why Justice Stevens thought it necessary to remind everyone that denial of certiorari implies no opinion on the merits and why he chose Frazier and Velazquez to make that statement.
Justice Stevens is correct, of course, that denial of certiorari is not a precedent. Lower courts are not legally bound to read anything into it. However, for court-watchers interested in where things are headed, decisions such as this can give a clue to the current thinking of the Court's majority. The fact that the Court simply denied certiorari rather than vacating and remanding, as it often does with a slew of pending cases after a major decision, is an indication that Baze did indeed resolve more than Justice Stevens said and more than most of the anti-death-penalty commentators are saying.
Here are the cases:
06-11830 June 13, 2007 http://www.supremecourtus.gov/docket/06-11830.htm
Joseph Williams v. Georgia
Supreme Court of Georgia (S06P0675) September 18, 2006
07-303 September 7, 2007 http://www.supremecourtus.gov/docket/07-303.htm
Michael Anthony Taylor v. Larry Crawford, Director, Missouri Department of Corrections, et al.
USCA-8 (06-3651) June 4, 2007
07-395 September 24, 2007 http://www.supremecourtus.gov/docket/07-395.htm
Thomas D. Arthur v. Richard F. Allen, Commissioner, Alabama Department of Corrections, et al.
USCA-11 (07-13929) September 17, 2007
07-6243 September 4, 2007 http://www.supremecourtus.gov/docket/07-6243.htm
Kenneth Biros v. Ted Strickland, Governor of Ohio, et al.
USCA-6 (05-4057) March 2, 2007
07-7348 October 29, 2007 http://www.supremecourtus.gov/docket/07-7348.htm
Earl Wesley Berry v. Christopher B. Epps, Commissioner, Mississippi Department of Corrections, et al.
USCA-5 (07-70042) October 26, 2007
07-8315 December 18, 2007 http://www.supremecourtus.gov/docket/07-8315.htm
Lester Leroy Bower, Jr. v. Nathaniel Quarterman, Director, Texas Department of Criminal Justice, Correctional Institutions Division
USCA-5 (03-40980) August 16, 2007
07-8434 January 2, 2008 http://www.supremecourtus.gov/docket/07-8434.htm
Allen L. Nicklasson v. Don Roper, Superintendent, Potosi Correctional Center
USCA-8 (05-3318) June 21, 2007
07-9096 February 1, 2008 http://www.supremecourtus.gov/docket/07-9096.htm
Samuel David Crowe v. Hilton Hall, Warden
USCA-11 (05-16918) June 27, 2007
07-9402 February 20, 2008 http://www.supremecourtus.gov/docket/07-9402.htm
Richard Allen Johnson v. Florida
Supreme Court of Florida (SC04-1972) July 5, 2007
07-9486 February 25, 2008 http://www.supremecourtus.gov/docket/07-9486.htm
John Middleton v. Don Roper, Superintendent, Potosi Correctional Center
USCA-8 (06-2907) August 17, 2007
07-6234 September 5, 2007 http://www.supremecourtus.gov/docket/07-6234.htm
Richard Wade Cooey, II v. Ted Strickland, Governor of Ohio, et al.
USCA-6 (05-4057) March 2, 2007
07-9052 January 30, 2008 http://www.supremecourtus.gov/docket/07-9052.htm
James Frazier v. Ohio
Supreme Court of Ohio (2005-1316) October 10, 2007
07-8946 January 25, 2008 http://www.supremecourtus.gov/docket/07-8946.htm
Juan Velazquez v. Arizona
Supreme Court of Arizona (CR-04-361-AP) August 9, 2007
06-10966 May 1, 2007 http://www.supremecourtus.gov/docket/06-10966.htm
Gregory Walker v. Georgia
Supreme Court of Georgia (S06P0992) October 2, 2006
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