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A New Stay

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Judge Fogel's stay order is
here
.  I expect this will go to the Supreme Court. Hopefully we won't have the same kind of debacle as in the Harris case in 1992.

Update: The AP reports on the state's appeal to the Ninth Circuit.

2 Comments

It has already travelled down much the same path as Harris. In the district court's view, there's always just one more reason to put it off.

In an earlier post, I said that a judiciary behaving in this manner cannot expect to be taken seriously, and won't be. What Fogel ostensibly says is that he needs more time. Considered in isolation from everything else that's been going on, that's hard to dispute. But considered as part of a pattern -- which it is -- what we have here is slow motion abolitionism, in which a judge not sympathetic to the DP manages to find a way in perpetuity to delay it, even while disclaiming that that's what he's doing.

It's true formalistically that you can always file one more suit and raise one more claim. But if the DP is going to be enforced, then at some point it has to be enforced.

We have arrived at that point here. In the extremely unlikely event that California's procedure would produce severe (if temporary) pain, the time has come to say: too bad. Fogel admits that there is no doubt of guilt, and that the crime was horrendous.

Civilized life requires that we refrain from imposing gratuitous pain on even the worst of people; they are still human beings. What it also requires is that the law -- the only thing that protects us from the tyranny of the strong -- be carried out. We have properly deferred to the first of these concerns for a very long time. The stage has arrived for us to defer to the second.

An astute follower of C&C makes a serious case that I'm being too deferential to Judge Fogel.

I wrote in part: "What Fogel ostensibly says is that he needs more time. Considered in isolation from everything else that's been going on, that's hard to dispute. But considered as part of a pattern -- which it is -- what we have here is slow motion abolitionism, in which a judge not sympathetic to the DP manages to find a way in perpetuity to delay it, even while disclaiming that that's what he's doing."

Our reader observes, however: "[T]he assumption that he 'needs more time' is wrong-headed. First of all, these regs were in substantially final form in April. That means that Brown could have joined the Morales litigation then. Instead, not wanting to be bound by that litigation, Brown chose to stand on the sidelines. While that's not fatal to his claim, it certainly places some of the blame for the pickle we're in on him. Second, and more to the point, the regs became final a month ago. The state then set a date. Are we really going to start thinking that states have no business setting dates a month in advance based on presumptively valid regulations? The state has every right, and some would say a duty, to set the date. And even more to the point, the Morales litigation DID NOT involve Brown when the date was set. So why should the state give Brown the benefit of that litigation when he's not a party to it. Finally, the issue is not whether the federal judge has time to conduct a thorough review of the state's lethal injection procedure, but whether Brown (a) has shown a substantial risk of pain, (b) whether Brown can show that the protocol is substantially disssimilar to Kentucky's and (c) whether he can show that he has a reasonable likelihood of success on the merits. He's definitely NOT done (a) or (c), both of which are sine qua nons to the issuance of a stay under Supreme Court caselaw.

"In my view, you are simply being too deferential to the power of federal courts. Judge Fogel's time to review, absent the showing required in Baze, is irrelevant."

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