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May 5, 2007

Tennessee execution disrupted by lethal injection scrummage

As this local story details, Tennessee's "plans to execute convicted cop killer Philip Workman on Wednesday stalled Friday when a federal judge agreed that the state's new execution guidelines could conflict with the constitutional ban on cruel and unusual punishment."  Here's more:

In issuing a temporary restraining order, U.S. District Judge Todd J. Campbell said more time is needed to examine the defense claims that "the new execution protocol exposes (Workman) to a foreseeable and likely unnecessary risk" of pain and suffering prohibited by the U.S. Constitution.  Those were the arguments earlier in the day when Kelley Henry, a federal public defender representing Workman, said the new execution procedure was worse than the flawed older method.

The state will "review the judge's opinion and then decide whether to appeal," said Sharon Curtis-Flair, spokeswoman for the Attorney General's Office. The state's options would be to ask the court to reconsider the order or to appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati.  Barring those moves, the execution will be put off until at least May 14, when Campbell will hold an 8 a.m. hearing.

It will be interesting to see what the Sixth Circuit might do with this TRO if it gets appealed.  The full Sixth Circuit has been mulling for a long time a petition for en banc rehearing from Ohio death row inmates attacking Ohio's lethal injection protocols.  Now there are two states possibly putting these issues in front of a court that, as detailed here, is deeply divided on death penalty issues. 

May 5, 2007 at 09:14 AM | Permalink

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Comments

The Judge, Todd Campbell, a Clinton appointee, is a hack.

The four-page order is a complete joke. First, the judge says nothing about the weighty interests of the State of Tennessee in carrying out this execution. In fact, the court states that "Defendants have no interest in proceeding with an execution which may be found to be unconstitutional." Putting aside the obvious problem with this statement, namely that the word "may" means that the court may, in fact, be stopping a constitutional execution, in which case it would be undisputed that the state's interest was interfered with, is that it simply is not true. The state has a huge interest in carrying out its criminal judgments, whether or not the means to carry them out are ultimately determined to be constitutional and the state has a weighty interest in not being jerked around by federal courts issuing last-minute stays on behalf of killers.

Second, the Court gets some basic stuff wrong--the Plaintiff did not file his grievance with the Tennessee DOC pursuant to the PLRA, rather he filed it to remove any bar placed in front of him by the PLRA.

Third, the court simply makes the conclusory statement that the denial of a grievance by the TDOC constitutes an "exhiaustion of administrative remedies". (Of course, the court is not concerned about (a) whether the denial has any preclusive effect and (b) whether Tennessee law requires that the denial of the grievance be appealed to state court, which would likely mean that the PLRA is still engaged.)

Fourth, the court's factual analysis is simply laughable. He cites a doctor's opinion, and then states that Defendant does not rebut the evidence. So what? The burden of proof is on the prisoner to show that the state's procedures are unconstitutional. There is no doubt that, properly done, lethal injection is painless. Stating in the abstract that a lack of training etc. could make the guy suffer just isn't enough. Moreover, the court's reference to monitoring is ridiculous. There is no constitutional requirement that the condemned's execution be monitored, no matter what nitwit judges say.

Fifth, the court's statement that the defendant will suffer irreparable harm is wrong. The court cites the execution as irreparable harm. This is nonsense. It's not the execution, but the pain that is the harm. And there is nothing to show that he will suffer any.

Sixth, the court doesn't take into consideration the lateness of the filing. That the procedures have been revised means little or nothing. The basics of lethal injection are well known to the capital defense bar. This lawsuit should have been filed earlier.

Once again, an arrogant hack of a federal judge intervenes on behalf of a killer even though the law doesn't require it. One has to wonder where his priorities are.

Posted by: federalist | May 6, 2007 11:00:14 PM

"the court is not concerned about (a) whether the denial has any preclusive effect and (b) whether Tennessee law requires that the denial of the grievance be appealed to state court, which would likely mean that the PLRA is still engaged.)"

(a) It doesn't.
(b) The PLRA requires no such thing. We're talking about exhaustion of administrative remedies, not judicial ones.

Read Woodford v. Ngo. You obviously need a primer on the PLRA, and probably the Civil Rights Act.

Posted by: | May 7, 2007 12:51:53 PM

What about Allen v. McCurry (state court determination given preclusive effect--would be weird to argue that a prisoner could bypass state courts and argue no preclusion after Ngo) or University of Tennessee v. Elliott, 478 US 788 (1986)?

Posted by: federalist | May 7, 2007 1:56:00 PM

Sixth Circuit overturned the TRO. http://www.tsc.state.tn.us/OPINIONS/TSC/CapCases/Workman/20070507/Workman%206CCA%20Order%20Vacating%20TRO.pdf

Well done opinion by Sutton.

Posted by: federalist | May 7, 2007 5:06:12 PM

Tennessee is also trying to reschedule 3 more prisoners' execution dates. Motions to set execution dates were filed with the Tennessee Supreme Court for the executions of: 1) Pervis Payne (for a 20 yr old murder), 2) Mika'eel Abdullah Abdus-Samad (for a 21 year old murder) and 3) Edward Harbison (for a 24 year old murder).

Tennessee may well become the next Ohio when it comes to executing prisoners.

Posted by: federalist | May 8, 2007 12:18:24 AM

Tennessee is also trying to reschedule 3 more prisoners' execution dates. Motions to set execution dates were filed with the Tennessee Supreme Court for the executions of: 1) Pervis Payne (for a 20 yr old murder), 2) Mika'eel Abdullah Abdus-Samad (for a 21 year old murder) and 3) Edward Harbison (for a 24 year old murder).

Tennessee may well become the next Ohio when it comes to executing prisoners.

Posted by: federalist | May 8, 2007 12:18:34 AM

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