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Another Lawless Stay of Execution in California


United States District Judge Richard Seeborg does not give a damn what the United States Supreme Court says; he is going to ensure no one is executed in California regardless of controlling precedent.

In Glossip v. Gross (2015), the Supreme Court set out the requirements for a death row inmate to obtain a preliminary injunction in a method-of-execution civil suit.  One of the elements is that he must "establish a likelihood of success on the merits."  (Slip opinion p. 11.)  To establish that in a method-of-execution suit, the high court ruled (p. 13):

"requires petitioners to establish a likelihood that they can establish both that [the state's] lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives."

Years ago, before Glossip, a California murderer named Michael Morales blocked his execution by arguing that the three-drug protocol then in effect would likely violate the Eighth Amendment.  Since then, the other murderers whose judgments have been upheld all the way through the review process have piled in.  They have also been granted stays on nothing more than a showing that they are similarly situated to Morales.

But the intervention/stay orders issued last April 18 and today are post-Glossip orders.  Don't they require the showing that the Supreme Court says is required?  Of course.  And what does Judge Seeborg say about the Glossip requirement?
Nothing. Not one blasted word.  Neither the controlling precedent nor its standard are even mentioned.  Plaintiffs have made no showing whatever of an alternative.  The AG briefed the standard.  If Judge Seeborg thinks there is some reason it does not apply he could certainly have said so.  To simply ignore the controlling Supreme Court precedent is conduct unbecoming a judge.

What about treating similarly situated plaintiffs consistently?  Shouldn't the new plaintiffs be treated the same as the prior ones?  Of course.  That means treat them all correctly, not all wrongly.  The prior non-Glossip-compliant stays should be vacated.

The Attorney General of California should promptly appeal this lawless order and seek a stay of the injunction pending appeal.  He should immediately take the procedural steps needed to obtain review of the earlier orders.


"What about treating similarly situated plaintiffs consistently?"

From Justice Scalia:

"Relief from sentence of death because of the jury's inability to give 'full effect' to all mitigating factors has been made available only to those who have managed to drag out their habeas proceedings until today. This is not justice. It is caprice."

"Judge" Seeborg has earned the white-hot hatred of those families who have been patiently waiting for justice. And, at some point, SCOTUS is responsible for its lack of supervision in the capital punishment arena.


It seems to me that the AG has some responsibility. While they may have argued properly here, as I recall from this blog the AG did not previously attempt to argue exemptions from the APA in state court. While I have no doubt that the DAGs in the capital unit have done everything they could, I currently have no questions in my mind that Brown, Harris, and now Becerra are doing nothing to prioritize and speed up pending executions. To be honest, I wouldn't be surprised if they were hobbling the lawyers directly or indirectly through CDCR. Hopefully I am wrong, but I suspect Kent is in the know.

Kent, since CJLF did a great job in forcing CDCR to develop a new protocol (as well as passing a proposition to remove the APA litigation obstacles entirely), if the AG does not appeal Seeborg, is there a mechanism for CJLF to appeal? I don't recall/know if CJLF has any of the current murder victim's family as clients. I also don't do federal so I don't know if victims have federal standing.

It is disturbing that private entities are having to force the state to enforce its own judgments.

Perhaps Mr. Boyd, but I doubt Mr. Scheidegger would be so unsparing in his criticism were that the case.

The post states that the relevant standard was cited---if the court didn't even bother to mention it, then that's on the court.

David, standing is an issue. The AG (as attorney for CDCR) fought us on that in Winchell & Alexander v. Beard. We prevailed in the trial court, and that is when they settled, but of course that is not a precedent.

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