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Landrigan Developments

Update 2: The Ninth Circuit's order denying the State's appeal of the TRO is here.
Update: Paul Davenport has this update for AP on the State's appeal.

The Ninth's denial of leave to file a second habeas petition is here.  They call it an "SOS order," for "second or successive," an interesting term I had not heard before.
On Saturday, USDC Judge Roslyn Silver ordered the State of Arizona to disclose its source for the sodium thiopental to be used to execute repeat murderer Jeffrey Landrigan. See prior posts here and here.  Michael Kiefer has this story in the Arizona Republic.  The disclosure order is here.  Today, the Arizona Republic reports that Judge Silver has stayed the execution in order to litigate this extremely tenuous (to put in mildly) claim.

Is there a solution to all this last-minute federal court litigation in capital cases?  Yes, there is.  In 28 U.S.C. §2262(c), Congress has provided that once the first federal habeas proceeding is completed "no Federal court thereafter shall have the authority to enter a stay of execution in the case, unless the court of appeals approves the filing of a second or successive [habeas] application under section 2244(b)," which has very tight standards for such an approval.

To qualify for this bar, the state must (1) have a mechanism for appointing counsel in state postconviction proceedings; (2) have standards of qualification for appointment; (3) provide reasonable litigation expenses; and (4) apply for certification that it has done (1), (2), and (3) to the U.S. Attorney General, with de novo review of his decision by the D.C. Circuit.

Many states with capital punishment already have (1), (2), and (3), but none have pursued (4).  Get off the stick and apply, state attorneys general.


Will this learned judge's order be appealed?

So would §2262(c) prevent a federal court from entering a stay where the State abandoned any pretense of attempting an orderly and constitutional execution free of the wanton infliction of pain? Clearly not. Clearly unconstitutional in at least some situations.

That aside, this 'last-minute' litigation is only last minute because the State has been rushing to execute someone using drugs acquired from a source they refuse to reveal (Terry Goddard did offer the tidbit of information today that it was from 'Great Britain'). The reason why Arizona won't say where they got the drug from is unclear, but without knowing there can be no proper litigation of the Eighth Amendment claim. That claim (whether or not the drugs acquired from source X present a substantial risk of pain) clearly has merit in some situation. Even you, Mr. Scheidegger, presumably wouldn't argue that some chemicals cooked up in street lab and labelled as sodium thiopental could be used in an execution.

Arizona probably hasn't gone to quite such lengths, but without disclosing the source of the drugs it plans to use there is now way of resolving the issue, or the legality of the acquisition (it is arguably illegal for an EU company to export drugs it knows are going to be used for capital punishment, or under European Law - murder). You have offered no argument as to why the claim is 'tenuous'.

You can't sneak the kind of obstructionism that Arizona has practiced over the last month past federal judges, even those who have an extremely pro-state track record, like Judge Silver.

bhaal --

What this case actually represents is abolitionism hiding behind technicalities. The death penalty is legal in this country despite the decades-long campaign to end it. Indeed, it has much more public support now that in did in the 1960's.

The Supreme Court has approved the method of execution Arizona proposes, and there is nothing in Baze requiring either that the drugs come from any particular source or that the individual batch be checked over by a local court, state or federal, before it is administered.

I understand that there is a way of thinking obsessed with the well-being of the killer, an obsession equal in ardor to its indifference to the suffering of the victim. Fortunately, most people are unafflicted by this obsession, even while Judge Silver apparently is not among them.

This is not Europe and Arizona is not bound by European law. For all I know, this method of execution is also barred by Sharia law -- and that likewise makes not a whit of difference because it has no authority in this country.

This sentence was imposed years ago, and it's past time to get on with it. If you had serious evidence of actual innocence, that would be one thing, but you don't.

What you actually want is a NEVER ENDING court examination of the drugs, the better to secure by junk litigation the abolitionist outcome you cannot secure by the will of the people.

If section 2262 applied, litigation of this type would have to go to the state courts instead of the federal courts.

There is nothing unconstitutional about Congress closing off federal courts to a particular type of litigation and sending litigants to state court. The first Congress did it for habeas for state prisoners. Current law does it for challenges to state taxes.

You haven't answered any of my points. I am in favour of abolition of the death penalty, but all I want in this case is a fair adjudication of the issues, with the time to do so. Arizona has not provided that because it's deliberately hidden the source of the drug.

The Supreme Court in Baze certainly did not give carte blanche for States to source drugs from wherever they wanted, of whatever standard possible. You know this, and you insult the intelligence of this blog's readers by making such a weak point.

I don't doubt that Arizona is not bound by European law, but the manufacturer of the drug may be and the fact they are supplying drugs to kill people will doubtlessly affect their ability to win future business in the EU. That information should not be hidden away, by Arizona or anyone else.

I strongly believe in the rule of law, not the version that conservatives throw around, which accuses anyone who doesn't do what conservatives want of not following the rule of law, but the one which allows claims to be decided after a fair, deliberative process. Your rush towards executing everybody disembowels that principle and replaces it with the whim of man.

bhaal --

The insult to readers' intelligence -- not to mention the outright lie -- is your claim that "all I want in this case is a fair adjudication of the issues, with the time to do so."

Indeed you give away the game when you admit that you want the DP abolished, period. As part of that desire, you want this execution NEVER to take place -- admit it. The first step toward that goal is to have it take place sometime other than right now, and that is the real reason for this litigation.

You say you "strongly believe in the rule of law," but you attack from your self-annointed High Moral Standing the fundamentals of the rule of law, namely, that the people decide what the law will be. The people of Arizona have decided they want the death penalty to be available for heinous murders. And "being available" doesn't mean next century. It means with all deliberate speed, consistent with assurance that the condemned is factually guilty. This man is. Europe may see to its own arrogant foolishness, but it's past time that this country's law be carried out.

Majority rule is no part of the rule of law, in fact at times the will of a majority is at odds with what the law says. Even if I accept that should be some kind of natural state, from which all other law derives, the fundamental of the rule of law in a country with constitutional guarantees such as the Eighth Amendment is NOT that the majority decides what the law is.

Or, looking at it another way, the People did decide what the law should be by ratifying the Eighth Amendment and you're contradicting yourself by trying to denigrate it. You may not agree with the interpretation of that Amendment by the Supreme Court and, again, you belittle the rule of law by wanting to carry out an execution contrary to the decisions of a properly constituted Court.

Europe is foolishly arrogant for not having the death penalty? Really? Why exactly is it arrogant? Because it does things differently from what you think should be done? Pot. Kettle. Black.

bhaal --

"Majority rule is no part of the rule of law, in fact at times the will of a majority is at odds with what the law says."

There is no part of the US Constitution or of Baze that states or remotely implies that a state cannot use chemicals supplied by Britain (as has now been revealed as the supplier).

Beyond that, your contempt for democratic self-government is astounding. Majority rule is not part of the rule of law? Really? Well, I guess I should have expected that. You are, after all, from the nation that gave us King George.

I notice you whistle past my observation that you gave away the game with your admission that you want the DP abolished, period. As part of that desire, you want this execution NEVER to take place. The first step toward that goal is to have it take place sometime other than right now, and that is the real reason for this litigation.

Is there any part of that you dispute?

So my respect for the properly ratified Eighth Amendment shows a lack of respect for democratic self-government? How? Arizona is not some kind of protected party who gets to conceal information in litigation. Would you prefer it if government could conceal whatever information they wished? Is the death penalty a privileged objective, such that the usual rules of discovery and fairness don't apply?

"Is the death penalty a privileged objective, such that the usual rules of discovery and fairness don't apply?"

Last I checked, Baze v. Rees didn't really contemplate discovery where the murderer speculated as to the pain issue. That's why Silver's order is such a disgrace.

I don't think there was such an exception in Baze, nor is that an argument that the State has explicitly made. What section of Baze makes you think this?

well federalist, you were correct essentially, stay vacated for failure to make the required showing under Baze:


If you don't want to show sympathy for Landrigan, at least spare a thought for his lawyers, who have doubtlessly worked incredibly hard on this case.

I join bhaal in his hat tip to federalist, whose obviously correct reading of Baze saved the day.

In a different world, I would force Judge Silver and the Ninth Circuit panel to reimburse the state of Arizona for the amount of work it had to do and the expenses it had to bear to carry out a perfectly legal sentence in a perfectly legal manner. Their smarmy indulgence of the Landrigan's junk litigation met its rightful rebuke.

I disagree with bhaal's suggestion that we spare a thought for Landrigan's counsel. I suggest we spare a thought for his victim.

Bill, you're far too kind. Kudos to the dedicated AGs who worked hard to get justice here. They deserve all the credit here. It's easy to play jeopardy at home.

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