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May 15, 2012

Ninth Circuit panel grudgingly allows Arizona execution to go forward

As reported in this AP article, the Ninth Circuit "is refusing to block an Arizona execution scheduled for Wednesday." Here is a quick summary of all the action:

Separate three-judge panels of the U.S. 9th Circuit Court of Appeals in San Francisco on Tuesday each denied an appeal filed on behalf of Samuel Villegas Lopez. One of the appeals challenged the state's execution procedures while the other argued that Lopez was denied effective legal representation.

Meanwhile, Lopez's lawyers have asked the Arizona Supreme Court to block his execution so a lower court can consider whether Lopez's rights to a fair clemency hearing have been violated.

Lopez is scheduled to be executed for the 1986 murder of Estefana Holmes of Phoenix.

I never cease to be amazed at all the eve-of-execution litigation that can take place more than a quarter-century after a murderer's offense.  And, as detailed in opinions linked here, a panel of the Ninth Circuit seems amazed by how Arizona is going about administering its execution protocols (even as it ultimately concludes Arizona should be allowed to move forward with its execution plans).

May 15, 2012 at 05:17 PM | Permalink

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Comments

I also never cease to be amazed by attorneys waiting until the last few days to litigate important issues. These executions are ordered well enough ahead of time to allow for careful consideration by the courts. However, very rarely is defense counsel chided by judges for doing this. We wonder why judges rip the DP when they get near retirement? The federal judges I have spoken to over the years mentioned this "last minute" litigation in every conversation.

As for Arizona, they are inviting some of themselves. Why some of these states continue to play chess with the federal courts is baffling.

Shouldn't have Governor Brewer waited until the Lopez case was resolved before she made changes to the Parole Board?

Posted by: DaveP | May 15, 2012 5:55:20 PM

As for Arizona, they are inviting some of this by themselves.

Posted by: DaveP | May 15, 2012 5:58:00 PM

Dave P --

"Shouldn't have Governor Brewer waited until the Lopez case was resolved before she made changes to the Parole Board?"

The problem is that if the Governor waits for the resolution of one case, the next one is right behind it, and the "wait" turns into infinity.

Posted by: Bill Otis | May 15, 2012 6:50:00 PM

Bill Otis

I don't believe any executions are scheduled in Arizona after Lopez. On the other hand, his attorneys should not have left the clemency hearing in the first place.

Posted by: DaveP | May 15, 2012 6:56:56 PM

"Shouldn't have Governor Brewer waited until the Lopez case was resolved before she made changes to the Parole Board?"

That this is an issue is simply beyond belief.

As for the visitation order, apparently the Ninth Circuit thinks that it has some sort of mandate here. That order is a joke, and it goes to show why federal courts simply need to be out of the execution business.

Posted by: federalist | May 15, 2012 9:15:46 PM

@DaveP
While leaving the hearing and challenging its validity seems like a gamble, it did buy Lopez another months-and-a-half. That's the best they can hope for given his next to zero chances of getting clemency. He's clearly guilty, his crime was horrific and he is not mentally ill or retarded by any legal standard.

Posted by: MikeinCT | May 15, 2012 9:28:36 PM

Mike in CT
Agreed. They have one thing iind:delay. It is frustrating to watch some states provide issues for appeal.

Federalist
The attorneys make an issue out of anything and everything. I just don' t understand why someone didn't advise Brewer to wait. Bad timing that results in more unecessary litigation.

Posted by: DaveP | May 15, 2012 9:47:04 PM

"The attorneys make an issue out of anything and everything. I just don' t understand why someone didn't advise Brewer to wait. Bad timing that results in more unecessary litigation."

Yes they do. Hopefully, people of sense in Congress next year will curtail the FPD's ability to challenge state procedures. That the Arizona Supreme Court tolerated the walking out is utterly ridiculous.

Posted by: federalist | May 16, 2012 6:59:35 AM

If Congress "curtails" the ability to challenge, the ironic result very well will be what happened after when habeas appeals were restricted -- more avenue for litigation on just what this all entails.

DaveP has a "pox on both their houses" philosophy here. It makes the tone of the rulings a lot less surprising if the judges have a reason to be upset about the legitimacy of the process. Again, someone who is not overly sympathetic about the defense side is putting some blame on the state here. No wonder the courts are "grudging" here. Finally, the drug protocols are somewhat in flux at the moment, including a move in various states to a one drug protocol. There is naturally some push/pull as to that. Once the matter is fixed for some period of time, the litigation could be dealt with in a more pro forma fashion.

Posted by: Joe | May 16, 2012 9:30:57 AM

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