As I have stated before, the Supreme Court's tolerance of this circus is indefensible and is a stain on the reputation of the Court. First and foremost, capital litigants who have gone through all the normal routes of review are the last people who should get special treatment in federal courts. That it is necessary to state this obvious fact shows just how much federal courts have fallen down on their duties. In this case, a flurry of last-minute litigation (that almost certainly could have been brought in a far more orderly fashion and handled with dispatch) led to a stay. That's not acceptable. When the state issues an execution date (with some lead time, as happened here) for a killer who has exhausted all normal review procedures, a stay should be issued by federal courts only in the most extreme of circumstances.

This particular case is very troubling. The stay is based on some pretty dubious grounds--first, there doesn't seem to be any analysis of whether the factors counseled for or against a stay. That's error. And second, the Third Circuit seems to be more worried about what the federal judge did than the showing of the convicted murderer. That cannot be right. The staying of the hand of a sovereign state has to be the result of the defendant showing an entitlement to it, not some doubt about whether a federal judge dotted all the "i's" and crossed all the "t's." Once again, this seems an obvious proposition, a stay in these cases has to depend on what the defendant showed, not what the federal judge did.

The family of Trista Eng should not have had to go through with this. The Commonwealth of Pennsylvania certainly is not to blame for their ordeal. The federal courts are. Pennsylvania gave the defendant and the federal courts plenty of time to handle any last-minute litigation. And it didn't get done, and now we have a stay. Of course, it goes without saying that a capital murderer (who has exhausted all normal procedures for review) should be the one to bear the risk where the federal courts cannot act in time to resolve his claims. This is obvious for two reasons: (a) the Supreme Court has unanimously recognized the victim's family's interest in timely enforcement (Hill v. McDonough) , and (b) the capital murderer chose to create the whole situation by committing murder--a victim's family did not ask to be the family member of a murder victim.

The Eng family has every right to despise the panel and the Supreme Court for ignoring pronouncements about stays of executions and adding to their pain. The federal courts dropped the ball, and the Supreme Court couldn't even be bothered to explain why it was upholding the stay. To me, it is interesting to juxtapose the Supreme Court's intervention into the once in a lifetime facts of the Maples case wherein it came to the rescue of a white-shoe law firm and an obviously guilty capital murderer with the lack of intervention into cases like this. Apparently, the reputation of white-shoe law firms (and sending a message to states that there are some unspoken, i.e., lawless, rules of the capital punishment game) is more important than the pain wrongfully inflicted by federal courts on a family that had the horrible experience of losing their beloved daughter.

The sad thing is that the Supreme Court has to know this. How many capital cases have the Justices handled? Yet they chose to act in this manner. Utterly shameful.

The trial judge's decision to issue a certificate of appealability is supposed to be based on the inmate's showing, so in the ordinary first appeal from denial of habeas, I have no problem with the court of appeals saying that if it's good enough for a COA, it's good enough for a stay. My problem here is with the application of that approach outside its proper context to a case where a 60(b) motion is used to evade the successive petition limitation. I think that calls for a different standard.