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A Stop and Go From the Supreme Court

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Leroy White was executed by the State of Alabama yesterday.  He killed his estranged wife, Ruby White, with a shotgun in 1988.  Keith Clines of the Huntsville Times has this report.

As is common in last-minute capital appeals, White had two petitions to the Supreme Court.  White v. Culliver, Warden, No. 10-8367 sought review of the decision of a lower federal court, and White v. Alabama, No. 10-8382 sought review of the decision of the state high court.

The statute on stays pending Supreme Court review, 28 U.S.C. ยง2101(f) gives the power to grant a stay to individual Justices, but it was settled in 1807* that a power given by law to individual Justices may be exercised by the full Court.  In capital cases, the individual Justice assigned to the circuit regularly refers the application to the full Court whenever there is time.

In this case, the execution was held up when Justice Thomas, the Justice assigned to the Eleventh Circuit, granted a stay individually, apparently to allow time for the full Court to consider the application.  The claim involved ineffective assistance in plea bargaining, an issue the Court is actively considering in other cases.  The Court subsequently denied the stay and certiorari petition, without dissent, and lifted the stay previously issued.  The execution went forward about 3 hours later than scheduled.

The case also illustrates one reason why the death penalty is less often imposed in domestic violence cases.  The victim's daughter is also the perpetrator's daughter, and she was opposed to the execution. 

* Ex parte Bollman, 8 U.S. 75 (1807), a case arising out of the Aaron Burr conspiracy.

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