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July 2, 2009

Split Sixth Circuit panel upholds Tennessee's lethal injection procedures

Today in Harbison v. Little, No. 07-6225 (6th Cir. July 2, 2009) (available here), a (divided) Sixth Circuit panel declares that Tennessee's lethal injection protocol is constitutionally sound. Here is how the majority opinion starts:

Edward Jerome Harbison is a Tennessee prisoner under death sentence who has exhausted all appeals and was denied a writ of habeas corpus.  In 2006, Harbison filed a complaint under 42 U.S.C. § 1983, challenging Tennessee’s lethal injection protocol.  The district court granted judgment in favor of Harbison, holding that the protocol violated the Eighth Amendment.  The state defendants (State) appealed, relying on the Supreme Court’s decision in Baze v. Rees, 128 S. Ct. 1520 (2008), which was decided after the district court decision in this case.  Baze upheld Kentucky’s lethal injection protocol and held that a substantially similar protocol would not violate the Eighth Amendment.  Finding Tennessee’s protocol substantially similar, we vacate the district court’s judgment and remand for further proceedings.

Here is the heart of the complaint about this ruling coming from Judge Clay in his dissent:

By failing to provide the district court with an opportunity to consider Tennessee’s protocol in light of Baze, the majority effectively usurps the district court’s role as a factfinder and decides an issue never presented to the district court: whether there are material differences between Kentucky’s and Tennessee’s lethal injection protocols.  As a court of appeals, we are obligated to provide the district court with the first opportunity to receive evidence and rule on this question. Because I would remand this case for an evidentiary hearing in light of Baze, I respectfully dissent.

July 2, 2009 at 12:23 PM | Permalink


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Judge Clay. Wasn't he the judge who got clowned in Bobby v. Bies? Why should anything this bozo has to say be taken seriously?

Posted by: federalist | Jul 2, 2009 12:46:49 PM


You only demean yourself by posts like this.

An ad hominem attack shows that you can't deal with the specific issue being discussed. Such as: can an appellate court determine whether two death protocols are substantially similar when there's never been a hearing to let the parties address the issue?

No matter how anyone comes down on the specific question actually confronted by Judge Clay, the fact remains that Judge Clay dealt with the issue openly. Federalist descends immediately to ad hominem. Who's the clown?

Posted by: Mark Pickrell | Jul 2, 2009 1:32:46 PM

If substantial similarity is actually a matter of law and not fact then I see no reason to remand. However that does seem to stretch such a characterization about as far as it can without breaking.

I would be very surprised however if any honest examination would find very many implementations that states actually use to not meet the Bayes standard.

Posted by: Soronel Haetir | Jul 2, 2009 2:10:03 PM

"An ad hominem attack shows that you can't deal with the specific issue being discussed."

Actually, I can--I just felt like slamming Judge Clay. After all, when you're a federal judge and get embarassed like that (and after writing an opinion that said that the question was an easy one), commenters can point things like this out. (Query to Doug: can I call Judge Clay a "hack".)

As for the merits, let's look at what happened. Judge Aleta Trauger made up some law, er ruled, that Tennessee's LI protocol was unconstitutional and enjoined Tennessee from executing Harbison. Well, remember, under Baze, in order to get a stay of execution, you have to make a showing. So the Sixth Circuit was basically saying that the showing was not made. Moreover, an LI protocol is basically like a contract or state regulation--it can be reviewed by an appeals court and ruled on. Pretty simple.

Plus, I am sure that in the back of the minds of the two judges, Judge Trauger's impartiality was certainly suspect and so they wanted to take this case away from her. Tennessee, with a constitutional protocol, has been prohibited from executing Harbison for years now. That's unacceptable.

Posted by: federalist | Jul 2, 2009 4:01:09 PM

I have yet to see the case established here that Commenter X is so superior to other commenters that he should feel licensed to use locutions like, "You demean yourself with this argument......"

Even if the people who like to employ that sort of language had long and DOCUMENTED records of exceptional litigating experience, the phrase would be nothing more than a looking-down-the-nose expression of arrogance. For those lacking such a record, it is all the more so.

I am not in this post going to dicuss all the merits of this case. I disagree with federalist that Judge Clay's errors in one opinion impeach his reasoning in another. People can be blockheaded about one thing and insightful about the next; indeed it happens all the time. I agree with federalist that Clay is wrong here. The attempt by the capital defense bar to atomize Baze by claiming an unending list of supposed distinctions between the protocol in their case and the one the Supreme Court considered is simply, and as the majority of courts to have dealt with it have understood, the latest run-the-clock ploy in the arsenal of a thousand previous run-the-clock ploys.

Posted by: Bill Otis | Jul 3, 2009 4:29:07 PM

Bill, Bobby v. Bies was so bad, it does call into question Judge Clay's fitness to be a federal judge. The man is basically an idiot.

Posted by: federalist | Jul 3, 2009 5:00:30 PM


I agree with you that Judge Trauger's ruling did indicate bias and lack of objectivity. I don't know anything about her background, but is she always like a "wacky Ninth Circuit liberal?"

Posted by: justice seeker | Jul 4, 2009 1:17:16 PM

Clinton judge--therefore suspect.

Posted by: federalist | Jul 4, 2009 3:16:44 PM

Lord have mercy. And you are the people who are entrusted with seeking justice????

Father, thank you for keeping me out of the pit of hell called "lawyering."

Posted by: Grateful | Jul 4, 2009 7:37:37 PM


I'm not being arrogant. I believe these topics are worth taking seriously. That's why the ad hominem attack is so pernicious -- it cuts off reasoned discussion. Moreover, whether one agrees with Judge Clay or not, attacking him personally is a waste of time and is detrimental to our system of justice.

Your alteration of my post is telling. I was criticizing federalist directly for making an ad hominem attack, therefore I wrote, "You only demean yourself by posts like this." He was trying to demean Judge Clay, yet, in my opinion, only federalist is demeaned by his post. I used the word "only" to focus my criticism of federalist to his ad hominem attack. You, on other had, misquote me and say that I wrote, "You demean yourself with this argument. . . ." Your elimination of the word "only" doesn't show that I was focusing specifically on federalist's ad hominem attack -- your misquote fortifies your argument that I'm arrogant. Criticize me, fine, but don't misquote me to support your criticism. Also, your change of "post" to "argument" again fails to show that I was focusing on federalist's ad hominem attack. He wasn't making an argument. He was simply making a personal attack. It's that personal attack that I was criticizing, but again, your misquote makes it sound like I'm more arrogant than a correct quote would show.

My whole goal -- with my original post and as a general matter -- is to get people on this site to stick to facts and argument. Some commenters seem quite knowledgeable, which I appreciate. I don't want snarky ad hominem attacks to deter their participation. Frankly, whether a commenter has a "documented" record doesn't matter to me; I only care about the force of their argument or the facts they bring out. I don't care whether commenters are law students, judges, attorneys, attorneys with "documented" experience, dog catchers, housewives, prisoners, or whatever. Again, I only care about their arguments and the facts that they use to support them. If that makes me arrogant, then I guess I am. But criticizing federalist for making an ad hominem attack against a sitting federal judge hardly makes me arrogant.


Posted by: Mark Pickrell | Jul 6, 2009 2:08:51 PM

Mark --

While it's true that your comment to federalist was the starting point for my post, I did not intend to pick on you specifically. That is why I referred to "Commenter X" rather than to you. In the same vein, I did not intend to be quoting you (since another commenter had also made a "demean yourself" remark), but I think you are correct that I did not make that sufficiently clear, and I apologize for that deficiency.

I agree that people should just stick to arguments, with the caveat that a commenter has the right to defend himself when others are snide or superior, as opposed to analytical.

If people would stick to analysis and cases, it would help things out. I have spent more than a little time today trying to get some DP opponents to quit with the idea that I'm in kindergarten, or that I need to be given slack because my education assertedly came from a bunch of bozos at DOJ. Instead I have asked them to give their analysis of Judge Wardlaw's decision in the Clarence Ray Allen case, or of Justice Scalia's concurrence in Kansas v. Marsh. Thus far, these requests have been met with silence.

That is hardly your fault, of course, but to the extent you support setting forth arguments and leaving the nasties on the editing room floor, I think there is a broader audience that could benefit from that message.

Posted by: Bill Otis | Jul 6, 2009 5:32:10 PM

"Moreover, whether one agrees with Judge Clay or not, attacking him personally is a waste of time and is detrimental to our system of justice."
Really? And Mark, I'm sure when someone makes an ad hominem attack on Scalia or Thomas in a post here, you upbraid them, after all, they are being detrimental to our system of justice.

Federal judges are government officials. First of all, when they screw up, and Judge Clay royally screwed the pooch in Bobby v. Bies, they should be harshly criticized. Second, when someone botches a case that badly, and maintains his stupidity in the face of well-supported argument to the contrary, which Judge Clay did, it's fair to assume that Judge Clay isn't really about getting it right and that he's not exactly the sharpest tool in the drawer, which is relevant to his other work. Every one makes mistakes--Judge Clay's mistake in Bobby is not dismissable by reference to that truism.

Posted by: federalist | Jul 7, 2009 2:56:16 PM

Let us not forget that Judges Daughtrey and Moore joined Clay's "opinion". I wonder how a panel feels when they are shut down 9-0. You have to be very far off the mark to get Ginsburg, Souter, Breyer, and Stevens to vote for the State in a death case. Also, the 6th Circuit was reversed all 3 times this term by the SCOTUS.

Posted by: DaveP | Jul 7, 2009 8:28:22 PM

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