Recently in Death Penalty Category

Today in Los Angeles, Judge Cormac Carney entered final judgment on Claim 27 of Jones v. Chappell, his absurd decision that delay in the review of capital cases is a reason to change a death sentence to life imprisonment.

Federal Rule of Civil Procedure 54(b) permits a judge to enter final judgment on one claim while other claims remain pending "if the court expressly determines that there is no just reason for delay," which this judgment does.

This final judgment is appealable under 28 U.S.C. § 1291.  See, e.g., Brown v. Eli Lilly & Co., 654 F.3d 347 (CA2 2011).  A notice of appeal must be filed within 30 days.

There is no reason not to appeal this decision.  There is no excuse not to.
Arizona Director of Corrections Charles Ryan has this statement on the execution of Joseph Wood (emphasis added):

The Department of Corrections followed the execution protocol and, as with every execution, it was monitored by an IV team of licensed medical professionals in control of the medical procedures.

The first confirmation that inmate Wood was fully and deeply sedated occurred at 1:57 PM, five minutes after the direction to proceed with the administration of drugs was given. The medical team re-affirmed the inmate remained deeply sedated seven additional times before death was pronounced at 3:49 PM.

Once the inmate was sedated, other than sonorous respiration, or snoring, he did not grimace or make any further movement. Throughout this execution, I conferred and collaborated with our IV team members and was assured unequivocally that the inmate was comatose and never in pain or distress.

Physiologically, the time to complete an execution varies for each individual. The Department of Corrections will conduct a full review of the execution protocol and process. We will await the results of an independent autopsy from the Pima County Medical Examiner and we have requested a toxicology study as well.
Also, Ashby Jones and Jacob Gershman have this story in the WSJ.

Colorado Gov. Race Now A Toss-Up

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Colorado Governor John Hickenlooper was considered "safe" for reelection not so long ago.  Real Clear Politics changed its rating to "toss-up" last week.

On July 15, I noted that the NBC/Marist Poll had Hickenlooper ahead 49-43.  Conventional political wisdom is that an incumbent is in trouble if early polls show less than a majority, even if leading the opponent.

Two polls since then have come out 43-44 and 44-43, Quinnipiac and PPP respectively.  I generally dislike the term "statistical dead heat" in political poll reporting, but it fits here.  That's a dead heat.
 
Dan Frosch has this story in the WSJ:

Republicans have tried to cast Mr. Hickenlooper as indecisive, noting his move last year to delay the execution of a convicted murderer, Nathan Dunlap, over concerns about the death penalty's morality. Mr. Hickenlooper didn't grant Mr. Dunlap clemency either, instead issuing a "temporary reprieve."
The Federal Public Defender for Arizona has filed a motion to stop the execution of Joseph Wood already in progress.  The first paragraph says:

The Arizona Department of Corrections began the execution of Joseph Rudolph Wood III at 1:52 p.m. At 1:57 p.m ADC reported that Mr. Wood was sedated, but at 2:02 he began to breathe. At 2:03 his mouth moved. Mr. Wood has continued to breathe since that time. He has been gasping and snorting for more than an hour. At 3:02 p.m. At that time, staff rechecked for sedation. He is still alive. This execution has violated Mr. Wood's Eighth Amendment right to be executed in the absence of cruel and unusual punishment.
The conclusion does not follow from the premises.  The motion does not dispute the ADC's conclusion that Wood is sedated.  If he is sedated, he is not in pain, and nothing happening here remotely qualifies as "cruel."  Gasping and snorting do not necessarily mean a person is in pain, and if he is sedated he certainly is not.

When states were able to use the single-drug protocol with pentobarbital, the executions went smoothly.  The problem here has been caused by those who pressured the suppliers to stop supplying pentobarbital, and any response should be directed at reopening that supply line.

Update:  AP reports the Arizona AG says the execution is completed, though it took about 2 hours.

The anti-death-penalty crowd is already throwing around their favorite word, "botched."  Wrong.  Joseph Wood died, as he should have, and he was sedated, not suffering extreme pain or, for that matter, any pain.  That is not "botched."

Vietnam Lethal Injection

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Ha An reports for Thanh Nien News:

The Hai Phong man who outraged the nation by killing and dismembering an ex-girlfriend was executed by lethal injection on Tuesday night, despite his pleas for mercy.
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Nghia was watching his new girlfriend's apartment while she was out of town when he called Linh, his one-year college lover, to come over.

After they made love, he stabbed Linh to death, wrapped her torso in a blanket and stashed it on the building's rooftop.

He pawned her motorbike, laptop and mobile phone for VND5 million (US$240).

He was arrested on May 22, 2010 while hiding out in Thai Nguyen Province, one day after police discovered Linh's naked, rotting body.
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Starting in late 2011, Vietnam officially switched from dispatching convicts with firing squads to lethal injections. An EU ban on exports of the lethal cocktail to Vietnam caused a lengthy backlog and drove many convicts to insanity and suicide--until Vietnam began manufacturing its own lethal serum.
So there is a source of supply.  We need the House of Representatives to slip a provision exempting lethal injection drugs from FDA importation requirements into a bill that the Senate politically cannot refuse to pass and the President politically cannot veto.  See prior post.
Ryan v. Wood, 14A82 (today):

The application to vacate the judgment of the United States Court of Appeals for the Ninth Circuit granting a conditional preliminary injunction, presented to Justice Kennedy and by him referred to the Court, is granted. The district judge did not abuse his discretion in denying Wood's motion for a preliminary injunction. The judgment of the United States Court of Appeals for the Ninth Circuit reversing the district court and granting a conditional preliminary injunction is vacated.
No dissent is noted.  That does not necessarily mean the decision is unanimous, but any Justice voting against the order, if any, did not feel strongly enough about it to have it noted.

The Court denied Wood's motion for stay and petition for certiorari in the parallel case seeking review of the Arizona Supreme Court's decision.

Wood's execution is set for 10:00 a.m. Mountain Standard Time tomorrow.  Arizona doesn't go in for that biannual clock-fiddling nonsense.  That's 10:00 a.m. PDT and 1:00 p.m. EDT.

Update (Wednesday, 7/23):  Yesterday the Ninth Circuit rejected an attempt by Wood to reopen his case via Federal Rule of Civil Procedure 60(b).  This morning the U.S. Supreme Court denied a stay of execution and writ of certiorari in that case.  No dissent is noted.

Update 2:  Now the Arizona Supreme Court has issued a stay, according to this AP story 1:41 p.m. EDT 7/23.

Update 3:  The 2:48 EDT update of the AP story (same link) says Arizona Supreme lifted the stay an hour later.  "The appeal focused on arguments that Wood received inadequate legal representation at his sentencing, along with a challenge about the secrecy of the lethal injection drugs."
Twenty-five years ago, the U.S. Supreme Court announced one of the most important decisions* in the modern history of criminal procedure, Teague v. Lane, 489 U.S. 288, 306 (1989).  Adopting a rule proposed by Justice Harlan 20 years earlier, the court decided that new rules of constitutional law would not be applied retroactively to cases that were already final on direct review at the time the rule was announced.  A corollary rule was that new rules could not be announced in habeas review of final convictions.

In his decision declaring California's death penalty unconstitutional, Judge Carney has this cursory discussion of the Teague issue:

The rule Mr. Jones seeks to have applied here--that a state may not arbitrarily inflict the death penalty--is not new. Rather, it is inherent in the most basic notions of due process and fair punishment embedded in the core of the Eighth Amendment. See Furman, 408 U.S. at 274-77 (Brennan, J., concurring) (describing the principle that "the State must not arbitrarily inflict a severe punishment" as "inherent in the [Cruel and Unusual Punishment] Clause" and tracing its application in Anglo-American jurisprudence); see also id. at 242 (Douglas, J., concurring) ("There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature."). This rule is certainly one "so deeply embedded in the fabric of due process that everyone takes it for granted." Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (en banc). It is therefore not a new rule for Teague purposes. See id. ("[A] rule needs to be announced for purposes of Teague only if it's new.").
Judge Carney is breathtakingly ignorant of the most elementary principles for applying the Teague rule.

Arizona Moves to Vacate Wood Stay

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The State of Arizona has filed in the U.S. Supreme Court an application to vacate the stay of execution of murderer Joseph Wood, noted yesterday.  The case is Ryan v. Wood, 14A82.

The Ninth Circuit has a very helpful collection of the pleadings in this case.  The Supreme Court papers are in green.  The administrative folks at the Ninth really do an excellent job.  Now if we could only do something about the substance of the opinions . . .

Lest we forget what this case is about:
Last Wednesday, I noted in this post some of the reasons why Judge Carney's decision in Jones v. Chappell (declaring California's death penalty unconstitutional due to delays in execution) was wrong.  The opinion is wrong in so many ways that it will take a number of posts to catalog them.

To that end, former California Supervising Deputy Attorney General James Ching has this post at law.com giving some more reasons:

There is no doubt that the District Court condemns only state processes: "The Eighth Amendment simply cannot be read to proscribe a state from randomly selecting which few members of its criminal population it will sentence to death, but to allow that same state to randomly select which trivial few of those condemned it will actually execute."
The placing of blame is underlined by the District Court's failure to address any federal responsibility for the delay or to issue relief against the federal courts. However, if "[a]rbitrariness in execution is still arbitrary, regardless of when in the process the arbitrariness arises," it must surely apply to the 46.2% of the total delay and dysfunction.
Today's News Scan notes the stay of execution granted by a divided panel of the Ninth Circuit to Arizona murderer Joseph Wood so he can litigate his supposed First Amendment right to information about the source of Arizona's execution drugs.  The Ninth swiftly denied rehearing en banc with a dissent joined by 11 of the courts active judges.  The split was largely but not entirely on party-of-appointment lines, with Clinton appointee Richard Tallman and Obama appointee John Owens joining the dissent and Bush appointee Richard Clifton not joining it.

I have no doubt this case is headed for the Supreme Court.  It might be there already.

Summing up the Jones Death Penalty Case

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Every now and again, an anonymous Internet commenter hits the nail on the head, and one calling himself "Daniel" did so in summing up the Jones v. Chappell decision:  "The judiciary gets to make a hash of the death penalty and then claim the death penalty is unconstitutional because they made a hash of it."

Middleton Executed in Missouri

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Despite the best efforts of an obdurate judge and a ready-to-fudge-it shrink, the Eighth Circuit and the Supreme Court saw through it, and the state of Missouri executed multiple killer and meth dealer John Middleton.  Here's the story:

For the sixth time this year, Governor Jay Nixon declined to grant clemency to a death row inmate minutes before the execution deadline. John Middleton, a former meth-dealer convicted of three grisly murders in 1995, was injected with a dose of pentobarbital at 6:58 p.m. and pronounced dead at 7:06.

Middleton had spent nearly two decades in prison since his conviction in 1997. He was 54 years old.

Last night, U.S. District Court Judge Catherine Perry halted the former meth dealer's execution less than two hours before the 12:01 a.m. deadline, arguing that Middleton's demonstrated mental health issues "[have] made a significant threshold showing he is incompetent to be executed," and that he should be granted a legal hearing to evaluate his sanity.

In an affidavit, a psychologist who examined Middleton stated he "lacks a rational understanding of the reason for the execution and is therefore not competent to be executed due to a diagnosis of delusional disorder, a psychotic mental illness."

I might add that Judge Perry already had one stay lifted by her superiors, as Kent noted, but, hey, what the heck, she granted another on approximately the same grounds anyway.  (I'll abjure for the moment any comment on the sick irony of Judge Perry's doing her best to add yet more delay to the 19 years it took to carry out the sentence on the very day her colleague across the country was finding that the death penalty is unconstitutional because of too much delay).

[Editor's Note: The U.S. Supreme Court orders denying stay, writs of certiorari, and original habeas corpus are here, here, here, and here.  No dissents are noted. -- KS]

Miranda is one of the Supreme Court's most flagrantly lawless decisions.  One can agree, as I generally do, that it's wise as a policy matter to help insure the voluntariness of a defendant's statement by advising him that he has no obligation to make one, while still being clueless as to where in the Fifth Amendment the failure to give such advice per se makes the statement "compelled" and thus automatically subject to exclusion.

The most coherent, although still inadequate, excuse for the Court's effectively splicing Miranda warnings into the Fifth Amendment is that such is necessary, or at least very useful, as a "prophylaxis" to insure  --  without the courts having to examine each case in its own inscrutable detail  --  that the defendant's statement was in fact voluntary.  (Of course this rationale' disintegrates as soon as the ink is dry, because even defendants who admit they've been given the warnings are still able to, and routinely do, raise voluntariness challenges on all manner of other grounds  -- challenges the courts must decide long after the litigants have walked away from the Miranda motion).

I say this to make a point:  Miranda establishes, for good or ill, that the Court can adopt specific prophylactic rules to safeguard a defendant's constitutional rights. And Miranda is going on fifty years old.  Especially after the Court re-affirmed Miranda in Dickerson, it's too late to un-ring the prophylactic rights bell.

Today's death penalty decision from the district court in California thus gives us an unexpected but important lesson:  It's time to apply Miranda's ad hoc creativity to safeguard a defendant's rights, not under the Fifth Amendment, but under the Eighth. 

The Lackey Claim, Again

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It's been almost twenty years since Justice Stevens, alone, took seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it, all or most of them initiated by the defendant.  That was in Lackey v. Texas, 514 U.S. 1045 (1995).  The full court has turned the claim down every time.  Although denial of certiorari (meaning simply that the high court declines to hear the case) does not form a precedent binding on lower courts, the consistency of rejection of this claim has generally been understood as a signal that the issue was dead.

Prior posts on the high court's rejection of Lackey claims are here, here, here, here, and here.

Justice Thomas noted in Knight v. Florida, 528 U.S. 990 (1999):

I write only to point out that I am unaware of any support in the American constitutional tradition or in this Court's precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. Indeed, were there any such support in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.
Now comes a federal district judge in California who accepts the claim based on the particularly extended delays in California.  The order is here.

Judge Carney's thesis, in a nutshell, is that the death penalty lacks a penological basis after such a long delay.  But the retribution interest, at least, is still there.  The defendant still deserves this punishment for the very worst murders, and society has a valid interest in carrying it out, no matter how long it takes.

The problems Judge Carney notes are violations of rights, though -- the rights of the victims' families.  See 18 U.S.C. § 3771(a)(7); Cal. Const., Art. I, § 28(b)(9).  The California Legislature has been derelict in its duty to pass the needed reforms, killing them in committee time after time.  The Department of Corrections and Rehabilitation, and ultimately the Governor, have been derelict in their duty to carry out their responsibilities to execute judgments and implement a protocol that will allow them to do so.  The California Supreme Court has been derelict in its duty to resolve state habeas petitions in a reasonable time by referring them to the superior court where they belong.  The federal courts have been derelict in their duty to fully implement the Antiterrorism and Effective Death Penalty Act of 1996, evading it at every turn despite numerous reversals by the Supreme Court.

All of these people need to do their duty and fix the delays -- for the victims, not the perpetrators.

The facts of the particular case follow the break.
Today's News Scan noted that a federal district court had stayed the execution of Missouri triple murderer John Middleton.  The U.S. Court of Appeals for the Eighth Circuit has vacated that stay, Jim Salter reports for AP.

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