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December 4, 2009

Sixth Circuit judges duel over Ohio defendant's old lethal injection challenge

This afternoon, the Sixth Circuit officially denied en banc review of a panel's ruling that Kenneth Biros challenge to Ohio's old three-drug lethal injection execution protocol is moot.  That order is available here, and it is worth downloading because of concurring and dissenting opinions coming from Judge Sutton and Moore. 

Perhaps not surprisingly, the concurring opinion from Judge Sutton suggests that Ohio's adoption of a new one-drug lethal injection protocol largely solves the asserted constitutional problems with Ohio's execution method.  Judge Moore's dissent from denial of en banc review takes issue with much of what gets said by Judge Sutton, and she ends her dissent with this assertion: "The rush to execution in this case is totally unwarranted, and the panel’s justification is unsupportable."

Technically, none of this resolves Kenneth Biros' separate challenge to Ohio's new one-drug protocol, and I believe that challenge and a request for a stay is still before the district court.  Nevertheless, this new ruling confirms my sense that the majority of the Sixth Circuit is prepared and perhaps eager to allow Ohio to go forward next week with its new one-drug execution protocol.

UPDATE:  Another dissent by Judge Martin in this matter has now come down the pike and is available here at the very end of the order.  These concluding sentences capture this dissent's basic spirit:

The merits of Ohio’s new protocol are certainly not before us — indeed, that is the fundamental basis for the panel’s decision that Biros’s claims based on the prior protocol are moot — but they inevitably will be, and the concurrence offers a sneak peek on the way that at least two of my colleagues view those merits.  On the whole, I would rather that we all went home today having only made a hash of our mootness jurisprudence rather than having made a hash of our mootness jurisprudence and offering up views on an issue that is not currently, but soon will be, before us.

December 4, 2009 at 01:58 PM | Permalink

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Legal Battle over Ohio's Lethal Injection Protocol: Doug Berman reports on Sentencing Law and Policy that the Sixth Circuit has officially denied en banc review of a panel's ruling that Kenneth Biros challenge to Ohio's old three-drug lethal injection ... [Read More]

Tracked on Dec 7, 2009 12:03:04 PM

Comments

"The rush to execution in this case is totally unwarranted, and the panel’s justification is unsupportable."

Orwellian.

Posted by: federalist | Dec 4, 2009 2:58:39 PM

I am by no means a Judge Sutton fan and I have openly criticized him on this blog before. But I have to agree with federalist. I understand the moral repugnance some people feel towards the death penalty. But they actually lose their moral edge when they engage in these types of reprehensible tactics.

Posted by: Daniel | Dec 4, 2009 3:37:53 PM

Given Biros' explicit endorsement of the one-drug protocol how does it lie in his mouth to argue that it's unconstitutional?

And perhaps Judge Moore should consider the feelings of the victims' family here. How long have federal courts been looking at Biros' claims?

Posted by: federalist | Dec 4, 2009 3:57:25 PM

I don’t think any judge should consider the feelings of the victim’s family. The judge should decide the case based on the law. In this case, it appears the panel did so.

Posted by: Marc Shepherd | Dec 4, 2009 4:32:58 PM

Marc, then you would be ignoring a unanimous SCOTUS case, Hill v. McDonough:

"Both the State and the victims of crime have an important interest in the timely enforcement of a sentence."

Posted by: federalist | Dec 4, 2009 4:57:41 PM

I wish Judges Martin,Moore,Merritt, etc would stay home quite often.

Posted by: DaveP | Dec 4, 2009 5:07:24 PM

SCOTIS is correct that the victims of crime have an important interest in the timely enforcement of a sentence. But if the defendant had presented a legally valid claim, I doubt that SCOTUS would say it should be denied because the victims would prefer that it not be heard.

The defendant doesn’t lose here because the victims want him to. The defendant loses because he is wrong on the law.

Posted by: Marc Shepherd | Dec 4, 2009 5:09:14 PM

By the way, how can anyone take Judge Martin's whining seriously. When you're on a panel that gets clowned by SCOTUS for mischaracterizing the record (not the law, mind you, the record) in a PC opinion, you shouldn't be yapping about making a hash of anything. The bottom line is that Sutton is right. Biros asked for a stay of the old procedure, which simply isn't relevant anymore.

Hopefully, Judge Frost, will ask Biros why the one-drug protocol was ok a few months ago but is now not so hot.

Posted by: federalist | Dec 4, 2009 5:09:21 PM

Excellent post Federalist. Biros attorney's are being quite hypocritical.

Posted by: DaveP | Dec 4, 2009 5:13:32 PM

Thanks Dave. Let's hope the state has the stones to point out Biros' conversion. Funny how the libs in here are silent about Biros' change of heart re: one-drug protocol.

Posted by: federalist | Dec 4, 2009 5:18:44 PM

I am so tired of the whining liberals appointed by former President Carter such as Martin, Merritt, and Reinhardt over at the 9th. What a coincidence.

Posted by: DaveP | Dec 4, 2009 5:30:11 PM

Marc, the issue is whether the stay should be granted or not--the suffering of the victims' family IS relevant to that question.

Posted by: federalist | Dec 4, 2009 5:36:44 PM

Federalist,

You may be right that we shouldn't take Judge Martin seriously. But shouldn't we also think about whether we take Judge Sutton seriously anymore? Judge Moore is correct on the textbook application of the mootness cases - perhaps the stay itself should not have been granted, but the claim is certainly not legally moot and Sutton's panel should have just vacated the stay on its merits. And Judge Martin is certainly right that Sutton's opinion explicitly blesses the new protocol before it even comes before him. Is it at all consistent with a supposedly conservative judicial philosophy to misapply precedent to reach a desired result or to offer advisory dicta on issues not before the court? Oh, I forgot, he was a Scalia clerk, so the answer must be yes.

Posted by: A. Nony. Mous | Dec 4, 2009 6:03:16 PM

Guys, the mootness issue seems pretty easy. In order to get stay, Biros claimed old protocol was bad. Old protocol is gone. While new protocol may have some of the same issues as old, the claim itself (re: old protocol) is moot. Not that hard.

Posted by: federalist | Dec 4, 2009 8:40:59 PM

I urge you to read Judge Moore's opinion, and maybe some of the cases she cites. Hornbook mootness law: voluntary cessation of challenged activity does not render a claim moot. Ohio could switch back to the old protocol tomorrow (see Judge Gilman's dissent in, I believe, Cooey II for description of Ohio law re DP procedure). The claim is not moot.

Posted by: A. Nony. Mous | Dec 4, 2009 9:23:34 PM

"Hornbook mootness law: voluntary cessation of challenged activity does not render a claim moot."

Should read "does not necessarily" . . . .

But perhaps, just perhaps, you oughta think for a second about what's going on here--a stay was granted under the assumption that Ohio would be using the old protocol. That assumption is, shall we say, almost certainly overcome by events, and we're going to leave in place a stay based on that assumption? Now perhaps, if you believe that the default rule is that a federal court gets to stay executions until it does its investigation into the method of execution--but that isn't consistent with Baze.

Posted by: federalist | Dec 4, 2009 9:36:13 PM

Marc, the issue is whether the stay should be granted or not--the suffering of the victims' family IS relevant to that question.

Federalist, can you name a single case where the suffering of the victims' family was the tipping point in the decision? That is, a case where, but for that factor, it would have turned out the other way? I doubt it. It is, at best, a 10th-order factor, one that is mentioned in a long laundry list, but that never actually decides anything. At the appellate level, I don't think the victims' families' feelings actually control any decision.

Posted by: Marc Shepherd | Dec 5, 2009 8:17:45 AM

Well Marc, the language I've quoted in a unanimous opinion says otherwise. The federal courts, it must not be forgotten, stayed a perfectly constitutional method of execution for this guy over a year ago. They've had their chance--time for this to end.

Posted by: federalist | Dec 5, 2009 9:11:54 AM

So many people opining on things about which they are actually ignorant. No, the new protocol does NOT moot the old challenge, because the old challenge addressed more than just the drugs involved. See, e.g., the events surrounding the Broom execution attempt. Nothing is different in the "new" protocol in that regard, so, no, it's not moot. Also, Biros's attys had previously argued that a one-drug lethal cocktail, in and of itself, would be constitutionally acceptable. The problem, again, is that's not all that's involved. Again, see, e.g., the Broom matter. Judges Moore and Martin are precisely correct in their criticisms of the panel's mootness doctrine analysis (or misanalysis, to be more accurate). Also, the stay was not "granted on the assumption Ohio would use the new protocol." The stay was explicitly granted on the basis that Ohio had divulged that they were looking at new options, and more discovery was needed to determine exactly the point here: whether the old case was/is moot, and what to do about it if so.

Posted by: DAB reader | Dec 5, 2009 6:53:54 PM

DAB, perhaps you should reread Sutton's opinion then--he does mention the other challenges.

In any event, the real issue here is the claim/argument-in-support boundary.

Posted by: federalist | Dec 6, 2009 9:37:33 AM

federalist -
I am not DAB. I am DAB reader. Yes, Sutton does mention the other claims, but, like all the rest of the meat there, he 1) did not have the facts from Broom in front of him (the hearing on THAT is the day after Biros's scheduled execution), and 2) he swept them in with the challenges to the three-drug part by -- again -- passing on arguments that were not before the court. The "real issue" is the blatant judicial activism displayed by a supposedly principled conservative jurist who is a darling of the Federalist Society crowd. On the merits of the real LEGAL issue, Judge Moore is correct; the mootness argument should have been an easy question, dictated by prior published opinion precedent that was factually indistinguishable. Indeed, Sutton never even tried to distinguish the controlling published precedent (the Akers case); he just ignored it away.

Posted by: DAB reader | Dec 6, 2009 5:05:31 PM

Like I said, DAB reader, the issue is where you draw the line between the claim and the arguments in support thereof.

Posted by: federalist | Dec 7, 2009 10:11:15 AM

Federalist, just proclaiming things to be the issue in short decalartive sentences does not make them so.

Here is what is going on here. Biros's initial complaint generally takes issue with both the 3 drug method and the training and competence of the executioners. Ohio voluntairly and unilaterally took the 3 drug protocol off the table. While this decision certainly takes a lot of the wind out of Biros's sails, it unequivocally does not make his complaint legally moot, for two reasons. First, the issues regarding the training and competence of the executioners remain live. And second, Ohio could legally switch back to the 3 drug method tomorrow. I dont even see this as a close case on mootness grounds.

But what is a close case is whether the change in the protocol lowers Biros's likelihood of success on his 8th Amendment claims sufficient to vacate the stay on its merits. I would have had no problem with the panel taking the position that even if there once was sufficient likelihood of success to support a stay, things have changed so there is no longer justification to continue with the stay. But the panel did not want to do this because it focuses the spotlight on something that the conservative judges want to ignore --- the botched Broom execution. That evidence is about as good as it gets that there is a fundamental problem with the way Ohio prepares for and carries out executions. It is an embarassment for Ohio and for the judges who have expended political capital to back Ohio in the past, thus they all want to act as if it never happened. They couldn't do that if they wanted to kick the stay on its merits, so they had to invent this new mootness rule.

Posted by: A.Nony.Mous | Dec 7, 2009 11:46:29 AM

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