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Eleventh Hour Claims

If there is any proposition of law that should be clear beyond question, it is that a death row inmate cannot attack the method of execution at the eleventh hour and get a stay of execution, when the claim has been known for years. The U.S. Supreme Court made that clear for stays issued by federal courts in the debacle surrounding the execution of Robert Alton Harris in 1992, the first California execution of the modern era. See Gomez v. USDC-NDCal, 503 U.S. 653.

State courts can go their own way, of course, and the Washington Supreme Court just did in the case of Cal Brown, previously noted here. Jennifer Sullivan has this story in the Seattle Times, with links to the victim's family's letter to the judge and the Washington Supreme Court order.

The order is signed by ACJ Charles Johnson, and dissents are noted by CJ Alexander and Justices Owens, Fairhurst, and James Johnson. Hence this disgrace must have been joined by Justices Madsen, Sanders, Chambers, and Stephens.

Note well, people of Washington, that Madsen and Sanders are up for reelection in 2010.


"Disgrace" is far too charitable word for this disgusting display of studied callousness masquerading as the rule of law.

It's as simple as this, when asked to choose, these repulsive human beings exercised their discretion to benefit a murderer whose cruelty is beyond description and whose lawyers gamed the system to the detriment of people who, at random, were the family members of a brutally murdered woman.

A dishonorable mention goes to the two on the clemency board who voted for a reprieve, one of whom stated that it was only fair that Brown get his day in court.

Of course, the Washington Supreme Court majority in this case has acted no worse than the US Supreme Court did when it granted stays while it considered Baze's lethal injection claim. The Supreme Court stayed executions based on last-minute filings as well. Equally contemptible.

I think this is considerably worse. Challenges to lethal injection were a more recently raised issue then. In addition, the Kentucky Supreme Court had chosen to deny relief on the merits rather than procedural default.

True enough, but the Supreme Court also has the shame of violating its own pronouncements about cert. grants in cases other than those of the petitioner and with respect to last-minute appeals. The stays granted in the wake of Baze say something about the commitment to the rule of law in the country.

The capital defense bar knew about these claims long before September 2007, and they tactically withheld them in many cases. The U.S. Supreme Court rewarded those tactics when it has condemned them in its own opinions.

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