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USCA9 and the Arizona Execution

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Following up on Bill's post, the Ninth Circuit panel opinion, the District Court opinion, and the opinions dissenting from and concurring in denial of rehearing en banc are here.  From the latter opinion by Judge Tallman:

Judge Reinhardt and those who join him fault this Court for failing to further delay the inevitable.  They fault us for not giving Donald Beaty yet another opportunity to delay the just punishment he has been resisting for more than 26 years.  Admittedly, we, like the district court, are "troubled by the timing of both the Department of Justice's request that [the Arizona Department of Corrections's ('ADC')] sodium thiopental not be used in Plaintiff's execution and the ADC's decision to substitute pentobarbital."  Nevertheless, we cannot say that Beaty has not been afforded all the process he is due.  Apparently, the Supreme Court agrees.  While we voted on whether to rehear this case en banc, the Court denied Beaty's petition for certiorari challenging the State's decision to substitute the drugs.

Lest anyone think that this is purely a dispute between Republican and Democrat appointees, I will note that Judge Tallman was appointed by President Clinton, as were two of the three judges in the panel that affirmed the District Court's denial of a stay.

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Given the hand that Beaty's defense had in the letter from the DOJ, Beaty could hardly complain about the last-minute switch.

One irritating note from the court--how they were "troubled" by the last minute switch. I, for one, am glad Arizona took the bull by the horns and gave the family justice after all these years. Arizona merely shifted one non-risky drug for another. That's hardly "troubling"--except to a handwringing, tut-tutting judge. "Troubling" or "troubled" are mealy-mouthed words to signal that the person can't really find anything wrong.

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