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February 29, 2012

Ninth Circuit tells Arizona to get its execution protocol fixed up ASAP or else

As detailed in this new AP article, a Ninth Circuit "panel on Tuesday issued a strong warning to Arizona officials who have continuously violated and changed their own written protocol for executing state death-row inmates." Here is more:

In its ruling on Tuesday, the three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco turned down a request to delay two upcoming executions -- that of Robert Henry Moormann on Wednesday and of Robert Charles Towery eight days later on March 8.

While the judges declined to delay the executions, they wrote that Arizona has forced the court "to engage in serious constitutional questions and complicated factual issues in the waning hours before executions." "This approach cannot continue," the panel wrote. "We are mindful of the admonition requiring us to refrain from micro-managing each individual execution, but the admonition has a breaking point."

And unless Arizona officials make permanent changes, the judges wrote that the court might have to start monitoring each individual execution in the state to make sure the law is followed.

The ruling comes after the state Department of Corrections unexpectedly changed its execution protocol last month, one of multiple unannounced changes in recent years.

The full 26-page per curiam opinion in this matter is available at this link.

February 29, 2012 at 10:04 AM | Permalink

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Comments

The arrogance of the federal courts strikes again. Arizona switched to the one-drug protocol, which certainly doesn't make the process less safe. Arizona gets to do that when it wants, and the federal courts have no business interfering. Baze says that a murderer has to show that the process is going to be unsafe in order to get a stay---there's nothing in Baze that says that federal courts get to object to when the state revises its protocol. Why federal courts get into the state alleged invitation to litigation is beyond me.

Posted by: federalist | Feb 29, 2012 10:59:40 AM

federalist --

At this point, it seems to me that the SCOTUS is going to have to refine Baze to say that, in order for a federal court to hear a method-of-execution challenge, the defendant must preliminarily establish by clear and convincing evidence that there is a significant likelihood of gratuitous, severe pain. The mere possibility of pain, or the fact of a previously untried execution procedure will be used, is speculative and insufficient, and if that's all the defendant's got, the case is to be dismissed.

Posted by: Bill Otis | Feb 29, 2012 11:43:39 AM

Bill, SCOTUS hasn't exactly been great on putting a stop to stays, and some of the Supreme Court's own stays have been very suspect.

Posted by: federalist | Feb 29, 2012 12:19:03 PM

"courts get to object to when the state revises its protocol"

The court here is not saying a state can not revise its protocol. The so-called arrogant court here -- while rejecting the claims here -- alleged that last minute changes repeatedly did not provide the court the proper time to determine if the Baze standard is met.

It is "beyond me" why this is an issue.

Posted by: Joe | Feb 29, 2012 12:27:20 PM

I think the 9th had a problem with Arizona discovering that one of the drugs used in the 3 drug protocol was expired in the last few days before the execution.

Posted by: DaveP | Feb 29, 2012 1:58:27 PM

Joe, so what? Baze doesn't contemplate courts having enough time to review the protocol. Baze contemplates the defendant making a showing of the risk of pain. If the defendant cannot show that, then no stay.

As for the Ninth having a problem with the discovery that the pancuronium bromide was expired . . . . again so what? An expired drug isn't necessarily ineffective, and tests can be performed. Manufactured outrage.

Posted by: federalist | Feb 29, 2012 2:50:19 PM

i think you and bill are missing the point here fed!

Everyone and i mean EVERYONE including the courts are FED UP with lieing govt officals! We have spent 200+ years and 100 BILLION dollars in 10,000 lawsuits to setup a system that sorta works. IF you are going to change that sytem then you DAMN WELL BETTER FOLLOW THE CHANGE YOU MADE!

Posted by: rodsmith | Feb 29, 2012 3:14:54 PM

federalist

don't you think Arizona should have noticed the expiration date on the PB earlier when the execution date was set? The AG petitioned the AZ Supreme Court to set execution dates for the 2 killers and noticed with a few days left that they have to change protocol?
Surely, the state can do better. Arizona and Ohio love to roll the dice with the federal courts.

Posted by: DaveP | Feb 29, 2012 3:29:48 PM

Am I missing something here? The Ninth Circuit just approved the execution of 2 persons, and federalist and Otis still complain. What else is new?

Posted by: Dave from Texas | Feb 29, 2012 3:37:09 PM

Dave from Texas --

"Am I missing something here? The Ninth Circuit just approved the execution of 2 persons, and federalist and Otis still complain. What else is new?"

What would be new would be for an abolitionist to admit that we have lost more innocent life because of the failure to impose the DP on killers who then did it again than because of the execution of innocent convicts.

Care to be the first?

Posted by: Bill Otis | Feb 29, 2012 5:22:46 PM

"Baze doesn't contemplate courts having enough time to review the protocol"

v.

"Baze contemplates the defendant making a showing of the risk of pain."

How exactly does the court determine if the defendant made a showing if it didn't have enough time to review the protocol to determine if said showing was proven?

Bill Otis doesn't actually answer Dave. The DP in this country (in fact even in England in the 18th Century) was always applied to but a small subset. If failure to impose is his concern, "abolitionists" is too small of a target.

Posted by: Joe | Feb 29, 2012 5:51:13 PM

DaveP, the state figured it out over a month before the execution. That is quintessential no harm, no foul. And it hardly becomes the Ninth Circuit, given its record of unanimous/summary reversals, some of which were extremely embarrassing, to be making gratuitous comments like that. Arizona, out of necessity, made a last minute switch. Shouldn't have been a big deal.

Posted by: federalist | Feb 29, 2012 7:16:55 PM

Dave from Texas:

You're on to something: Bill Otis and federalist are stark raving mad.

Posted by: Calif. Capital Defense Counsel | Feb 29, 2012 8:06:41 PM

CCDC --

"Bill Otis and federalist are stark raving mad."

Then your accusation earlier today that I'm a criminal cannot be correct, because a person who's stark raving mad cannot form the intent necessary to commit a crime.

Personally, I don't think you're mad. But you are a hoot. Keep on postin', my man.

Posted by: Bill Otis | Feb 29, 2012 9:17:58 PM

Ouch bill!

Good one!

Posted by: rodsmith | Mar 1, 2012 12:42:09 AM

rodsmith --

We always aim to please.

Posted by: Bill Otis | Mar 1, 2012 12:51:48 AM

federalist

if Arizona found out about the expiration date a month before, why did they wait until the last few days to change the protocol? It would have been better to announce the change much earlier, then the courts would have more time to examine it. Remember, the end result is that the states perform a consistent protocol and don't spring last minute changes on the courts so they can carry the executions out without delay.

Posted by: DaveP | Mar 1, 2012 8:35:39 AM

Dave, I have no idea why they waited. Bureaucracies are slow. And I don't disagree with you that states should try to have as smooth a process as possible so that they don't give courts the excuses to thwart justice.

To me, the problem is that we are now seeing publicly-funded scorched-earth litigation over every single lethal injection, and it's ridiculous. There was no good argument at all that any of Arizona's changes or Ohio's deviations caused one iota of increased risk to the criminals. Yet, the federal judiciary has seen fit to be a busybody. That is unacceptable.

If a state wants to, it can change the protocols at will. The federal judiciary needs to realize that.

Posted by: federalist | Mar 1, 2012 10:25:11 AM

see federalist! this is where you lose me!

"If a state wants to, it can change the protocols at will. The federal judiciary needs to realize that."

IF that protocol is in place BECASUE of a LOST LAW SUIT then NO they DON'T have any right to change it UNLESS the ORIGINAL COURT that ORDERED the ORIGINAL CHANGE okay's it.

THAT is how the average american thinks!

IF a court told you NO you can't do that BECASUE ...INSTEAD YOU ARE REQUIRED to do THIS! then guess what UNLESS either that court or another HIGHER court changes it. IT DOES NOT CHANGE!

Posted by: rodsmith | Mar 1, 2012 12:28:11 PM

federalist --

"To me, the problem is that we are now seeing publicly-funded scorched-earth litigation over every single lethal injection, and it's ridiculous."

Bingo. These "Oh-but-he-might-feel-pain" conjectural suits are so much nonsense. DaveP, it's abolitionism on the installment plan. These suits have absolutely no interest in pain. The idea is to litigate the DP into infinity, so nobody ever actually gets executed. I think you might be getting too indulgent about this strategy.

Death often involves pain. That's the way it is. Let's get moving.

Posted by: Bill Otis | Mar 1, 2012 12:35:45 PM

federalist

of course, I respect your opinion. However, the bottom line is that Arizona and Ohio are the only states actively having executions that are having this "micro-management" during the last few days before the executions. Texas, Oklahoma, Alabama, Mississippi,and Florida don't encounter any LI litigation because they are following protocol to keep the defense from running to the federal courts with new arguments.

As I have posted before, I can't believe Missouri, Arkansas, Tennessee and Kentucky are still bogged down in state court with LI issues.

Posted by: DaveP | Mar 1, 2012 12:37:58 PM

Bill Otis

Abolition is the end result they are always trying to accomplish, but any delay they obtain while it may be short-lived, keeps them motivated. That is their job. The cost of the DP and the numerous judges and AG's who have switched sides over the years give them incentive to fight on.

Posted by: DaveP | Mar 1, 2012 12:46:03 PM

"Am I missing something here?"

Forget it, Dave. It's Chinatown.

Posted by: Michael Drake | Mar 1, 2012 6:44:33 PM

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