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July 31, 2012

Notable assessment of California's ugly lethal injection litigation

Debra Saunders always brings an interesting perspective to sentencing debates, and her latest piece  discussing California litigation over lethal injection protocols is no exception. The piece is headlined "As Sacramento dawdles, district attorneys revolt," and here are excerpts:

California's death penalty has been in limbo since 2006, when a federal judge stayed the execution of Michael Morales, who was sentenced to death for the brutal 1981 murder and rape of 17-year-old Terri Winchell. The judge was fearful lest the state's three-drug lethal injection protocol would cause Morales undue pain. Since then, a number of states have switched to a one-drug protocol. Why hasn't California? The answer could be that Gov. Jerry Brown and Attorney General Kamala Harris don't want the death penalty to work.

Brown and Harris are personally opposed to the death penalty, but when they campaigned for office in 2010, both pledged to carry out the law. They're not exactly knocking themselves out to do so.

In 2009, Ohio adopted a one-drug protocol for executions. By administering a lethal dose of barbiturates, Ohio made it harder for frivolous appeals to keep the state from enforcing its laws. Several states followed suit, including Washington. Washington is important because the U.S. Court of Appeals for the 9th Circuit refused to stay a single-drug execution there in 2010.

California officials still are sticking with a three-drug protocol mired in legal challenges. Sacramento has been so ineffective that Los Angeles District Attorney Steve Cooley asked a Los Angeles Superior Court judge to make the state order the single-drug executions of multiple murderers Tiequon Cox and Mitchell Sims....

Believe it or not, a California deputy attorney general actually showed up in court to fight Cooley's effort -- in the name of Brown's Department of Corrections. The California Department of Justice argued that Cooley's gambit, if successful, would put Corrections in an "impossible position" because of Marin Superior Court Judge Faye D'Opal's injunction against executions pending new regulations. Hanisee counters that D'Opal doesn't have the authority to stop all executions. Besides, D'Opal faulted the state's rejection of a one-drug protocol.

"The murderer and the state's chief law enforcement officer were both on the same side," observed a disgusted Michael Rushford, president of the tough-on-crime Criminal Justice Legal Foundation....

San Mateo County District Attorney Stephen Wagstaffe ... also has asked a superior court to order a single-drug execution, of convicted killer Robert Fairbank. "At present," the San Mateo brief argues, "the laws of this state are not being enforced by the agency designated to do so."...

Death penalty foes have succeeded in placing a measure on the November ballot to repeal California's death penalty. As it is now, the more than 720 inmates on California's death row are likelier to die from natural causes or suicide than they are from lethal injection. Advocates then can point to the de facto death penalty moratorium and argue that capital punishment is an expensive failure.

Their spokesmen can point to gestures Brown and Harris have made to uphold the law, but Rushford believes that the governor and attorney general are deliberately failing to carry out California's death penalty law. Brown "doesn't want to enforce the death penalty," Rushford said. "That's what I believe, and everything he's done proves it."

July 31, 2012 at 07:37 PM | Permalink

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Comments

Let's not forget who started this--that evil Jeremy Fogel who thought the Constitution imposed a wattage requirement on a lightbulb.

Posted by: federalist | Jul 31, 2012 8:25:49 PM

And the saga drags on into its seventh year of pointless delaying tactics. Can anyone tell me what is being accomplished here? The method passes constitutional muster, it has been through a public comment period. What else can be done of any value? It appears they're being aided from the other side by the Governor.

I'd be more impressed if anti-death penalty activists could admit it was delay for the sake of delay.

Posted by: MikeinCT | Jul 31, 2012 10:06:11 PM

MikeinCT. "I'd be more impressed if anti-death penalty activists could admit it was delay for the sake of delay."

O.K. We admit it. it is delay for delay's sake. Feel better now?

Posted by: anon1 | Aug 1, 2012 2:47:45 AM

anon1 --

I'll feel better when you put that line front and center in every brief and memo you file in court from now on.

This is yet another reason I'm for truthcentric lawyering. Truth clears the air like nothing else.

Posted by: Bill Otis | Aug 1, 2012 10:12:32 AM

Is there any reason the injunction issued by D'Opal isn't immediately appealable? It strikes me as odd that the DAs would ask the judge to ignore the injunction because Judge D'Opal did not have authority to issue the injunction. Perhaps intervening in the APA case would have been the more sensible route. Of course, that would not have been as politically thrilling as filing this suit.

Posted by: John | Aug 1, 2012 10:28:10 AM

Bill, just as Mitt Romney takes advantage of every available loophole to avoid paying taxes that the rest of us pay (including Swiss bank accounts and Cayman Island accounts), my clients take advantage of every available loophole to stay alive. It's as American as apple pie.

Posted by: anon1 | Aug 1, 2012 10:57:28 AM

anon1 --

"Bill, just as Mitt Romney takes advantage of every available loophole to avoid paying taxes..."

I haven't examined his taxes, and don't care to since they have zip to do with the major issues facing the country, but I haven't heard even the accusation that he's done anything illegal, unlike Tim Geithner. And wasn't it Bill Clinton who claimed a charitable deduction of $5 a pair for every pair of used underpants he gave to charity? My goodness!

(Incidentally, I too take advantage of "loopholes" such as diverting income to a 401(k). Maybe you do, too. Something wrong with that?)

"...that the rest of us pay (including Swiss bank accounts and Cayman Island accounts)..."

Actually, "the rest of us" don't. Only half the country pays any federal income tax at all. The top ten percent of earners pay slightly over 70% of the taxes, meaning that 90% of the country is pulling 30% of the load. Is that cute or what?

"...my clients take advantage of every available loophole to stay alive..."

If only their victims had an equal chance to stay alive. Oh well, boys will be boys!

"It's as American as apple pie."

Then you should have no problem putting my suggestion into action, to wit, start every brief with, "Defendant in the instant action seeks delay for the sake of delay. It's as American as apple pie."

You might not win any more cases than you're winning now, but I guarantee you they'll get more attention.

Posted by: Bill Otis | Aug 1, 2012 11:22:58 AM

Bill, "I haven't examined his taxes, and don't care to since they have zip to do with the major issues facing the country"

Not so--his tax returns may show hypocrisy and double speak underlying economic plan and tax policy for the country, but we'll never know because he wont show. What's he ? His refusal to disclose shows cowardice--not the best character trait for the leader of the free world--Bill, what the devil is he hiding?

Posted by: anon15 | Aug 1, 2012 11:47:55 AM

'His refusal to disclose shows cowardice--not the best character trait for the leader of the free world--Bill, what the devil is he hiding?'

Most likely that he hasn't paid any taxes in the previous 10 years using a byline that he's paid all taxes legally required to....

'Mittens' is one slick businessman eh?

Posted by: Randy | Aug 1, 2012 12:54:56 PM

Lawyers use whatever means accepted by the courts as not frivolous for sanction purposes to protect the interests of their clients in a myriad of areas. They are not required to put this on the top of their briefs. But, some selectively target some of them.

The issue here is the state doing so to hinder an execution, so it's more complicated. Now, if the matter was clearly valid, being "on the same side" of a murderer is not horrible on principle [e.g., if a jury was bribed, the state might be "on the same side" of the murderer to toss out the judgment], but the spleen here is how long the state is dragging things out.

It is fair to conclude the governor is motivated by a personal opinion that the d.p. is problematic & that it is correct to delay things as long as possible if there is any chance of procedural difficulties. But, given how only a tiny number of people were executed in the state for years, no one governor or prosecutor or anyone else is involved writ large here. The people of CA might support the death penalty but they keep on putting in people who hinder its actual enforcement. This mixed position is fairly normal.

I guess the people should elect different people if they want a different path.

Posted by: Joe | Aug 1, 2012 12:57:46 PM

anon15 --

I'm really not interested in whether Romney (or Obama) is a hypocrite. If Romney has acted illegally, I would be certainly be interested in that, but no one has credibly alleged any such thing.

I never heard of a Presidential candidate who paid more than he was legally required to, no matter what he thought of the tax system. Obama all the time says that people who make as much as he does should pay more. But does he overpay on that account? Not that I ever heard of. Do you have any evidence that he does?

Nope, this hypocrisy charge is, like the tax return "issue," a diversion. Obama has run up the national debt like no other President in peacetime history. He has no plan to pay it down -- to the contrary, under his plan, it increases every year, even though right now it's at dangerous levels. The only way to even hope to tackle this is entitlement reform. This he hasn't done and isn't going to do, as you can't help knowing.

But at least the Iranian mullahs are afraid of him, so they've stopped trying to build the Big One. I'm glad they finally got with it after Round 59 of "sanctions."

Oh........what's that?.....never mind.

Still, you have to admit he's on top of unemployment.

Huh? Eight point two? For months on end?

Oh, ummmmmmmmmmmm, I gotta go now. But you be sure to hit those Romney tax returns.

Posted by: Bill Otis | Aug 1, 2012 2:13:39 PM

Joe --

"Lawyers use whatever means accepted by the courts as not frivolous for sanction purposes to protect the interests of their clients in a myriad of areas. They are not required to put this on the top of their briefs. But, some selectively target some of them."

Do you think it would be a good idea for lawyers honestly to state to the court what they hope to achieve by their filiings?

Yes or no.

Posted by: Bill Otis | Aug 1, 2012 2:18:19 PM

Bill, "Then you should have no problem putting my suggestion into action"

I've always understood that a criminal defense attorney “is charged with zealously advocating for his client within the bounds of the law and is deemed to best serve[] the public . . . by advancing the undivided interests of his client.” Polk County v. Dodson, 454 U.S. 312, 318-19 (1984) and that the defense attorney’s “overarching duty [is] to advocate the defendant's cause.” Strickland v. Washington, 466 U.S. 668, 688 (1984). My clients, for whatever misguided reason reason, do not want to die. Hence, my client's "cause" is to stay alive. If justifiable delay does the trick, then justifiable delay is the method.

Posted by: anon15 | Aug 1, 2012 2:27:53 PM

from Bill to Joe: "Do you think it would be a good idea for lawyers honestly to state to the court what they hope to achieve by their filings?"

I don't know what Joe will say, but I answer, "yes."

Bill, would this satisfy you: "Dear Court, my purpose in filing the attached brief is to keep the state from killing my client. In support of that goal, I offer the following arguments:

Posted by: anon21 | Aug 1, 2012 2:43:20 PM

anon21 --

"Bill, would this satisfy you: "Dear Court, my purpose in filing the attached brief is to keep the state from killing my client. In support of that goal, I offer the following arguments:"

No it would not satisfy me, because it is insufficiently specific. Anon1 candidly admitted that what's going on is the creation of "delay for delay's sake" (his words). Taking him at face value, what a forthcoming counsel would say is, "Dear Court, my purpose in filing the attached brief is to keep the state from carrying out the jury's judgment, and to do so by creating delay for delay's sake. In support of that goal, I offer the following 97 arguments, because I heard somewhere that, the more you throw up against the wall......well, you know the rest. And besides, since delay is the whole point, the more "arguments" I toss in, the better! Thanks so much!!"

Posted by: Bill Otis | Aug 1, 2012 3:04:39 PM

@anon1
"Bill, just as Mitt Romney takes advantage of every available loophole to avoid paying taxes that the rest of us pay (including Swiss bank accounts and Cayman Island accounts), my clients take advantage of every available loophole to stay alive. It's as American as apple pie."

What does that have to with this subject? And how is that any different than Obama hiding his substantial assets in tax-free bonds?

Posted by: MikeinCT | Aug 1, 2012 5:17:23 PM

MikeinCT --

As you point out, Romney's tax returns have zip to do with California's lethal injection litigation, which is the subject of this thread. Anon1 is just taking an opportunistic crack at Romney.

I couldn't help noticing, though, that some of those who are darkly suspicious of Romney and ask what he has to hide, have expressed zero curiosity about what Obama has to hide by Nixonesquely invoking executive privilege about a literally life-and-death matter of substantial public concern, to wit, Fast and Furious, and his Administration's role in delivering to drug dealers the weapons used to kill an American agent.

Posted by: Bill Otis | Aug 1, 2012 5:53:50 PM

Bill and MikeinCT.

"Romney's tax returns have zip to do with California's lethal injection litigation"

May I suggest Anon1 was simply drawing an analogy or using a metaphor (because I flunked English, I get confused on terminology). I believe the Bard famously did the same thing: "Like flies to wanton boys are we to the gods. They kill us for their sport." Now would we might rightly ask what flies have to do with the gods. But we don't, do we/ So there!

Posted by: I flunked English 101 | Aug 1, 2012 6:54:34 PM

@I flunked English 101
The only problem with your analogy is that none of us are using poetic language, nor is this the place for it.

Posted by: MikeinCT | Aug 1, 2012 8:38:27 PM

The bottom line is that Brown and Harris are dragging their feet on this, waiting for the Nov ballot initiative. They don't want executions,
plain and simple.

Posted by: DaveP | Aug 1, 2012 10:31:14 PM

I flunked English 101 --

Let me just ask you: What do flies have to do with the gods?

Posted by: Bill Otis | Aug 1, 2012 10:41:18 PM

California and Florida have about 1100 death row inmates and luckily for them, the state actors don' t want to carry out the executions.

Brown talks out of both sides of his mouth. Three of his appointments to the California Supreme Court were removed by the voters.


Posted by: DaveP | Aug 1, 2012 10:57:49 PM

Lethal drugs trash blood and useable organs .

Beheading with a properly designed blade , properly severing the head , allows all sorts of recoverable parts .

Rapid extension fracture of C2 can accomplish the same mission.

Docile J Brady Columbus OH AM OACDL
Typing for DJB only
Nemo Me Impune Lacessit

Posted by: Anon. 2.71828 | Aug 2, 2012 3:20:00 AM

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