Here is a nugget from the oral argument transcript in Beard v. Kindler. How does a state punish an escape by a person sentenced to death? One way is to declare his claims against his sentence forfeited, but Matthew Lawry was arguing against that:
CHIEF JUSTICE ROBERTS: No, no. Obviously if the State prevails he's in a worse position. But under your view, he's in this -- he's in no worse position. He hasn't waived all his objections and claims, procedures.
MR. LAWRY: Well, there are certainly other things that the State can do. They can -- they can prosecute him criminally for escape. There is administrative confinement, those kinds of things. But there is really --
JUSTICE SCALIA: Before or after his execution?
(Laughter.)
There seemed to be a certain artificiality to much of the oral argument. It seemed a bit unfair to bust the Commonwealth attorney's chops over the lack of clarity about the precise grounds of why the 3d Circuit held that Pa. didn't have an adequate ground to toss Kindler's claims.
It also seemed that the Commonwealth's argument suffered from a bit of schizophrenia. He took pains to point out the general problem of the cicuit court's being overly skeptical about state procedural bars. It may have been better to simply hammer home the bizarre result here.
Murderer's counsel probably shouldn't have led off with the "state's trying to kill my guy with no review" nonsense. Of course, there was probably no way to get around that one, given Roberts' bulldog questioning over whether this guy got a freebie for escaping.