Eleventh Circuit shuts down another lethal injection litigant

Late yesterday, the Eleventh Circuit in Rutherford v. McDonough, No. 06-10783 (11th Cir. Oct. 5, 2006) (available here) turned away another capital defendant's effort to assail Florida's lethal injection protocol through a § 1983 suit.  A split panel Rutherford essentially follows the lead of a prior panel's work in Hill (discussed here and here) in ruling that the death row defendant's § 1983 suit was brought too late. Judge Wilson writes a lengthy dissent, which concludes with this footnote:

A court in the Northern District of California is currently hearing expert testimony regarding a challenge to California's lethal injection protocols, which are materially similar to Florida's procedures. Morales v. Woodford, No. C-06-219-JF-RS (N.D. Cal. 2006).  Rutherford deserves the same opportunity.  Consequently, I would grant Rutherford's Application for a Stay of Execution, permitting him to return to the district court for a hearing on the merits of his § 1983 claim.

Some recent related posts:

• Regulating executions in California
• A lethal hearing (in the wrong place?)
• My lethal injection piece on SSRN
• Lots and lots of lethal headlines
• Supreme Court denies stay in Hill
• Up and down the Hill again

UPDATE: This Los Angeles Times article discusses the California lethal injection litigation noted by Judge Wilson.  Here is the lead:

A federal judge considering the constitutionality of the way California kills condemned inmates has asked prosecutors and defense lawyers a series of questions — including how the lethal injection procedures could be improved — that pose difficulties for both sides, experts say.