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October 20, 2010

Planned Missouri execution stays stayed over Sixth Amendment jury issue

As detailed in this Kansas City Star article, the "planned execution of a convicted Kansas City killer was called off late Tuesday night after the U.S. Supreme Court refused to lift a stay of execution." Here are the particulars:

Roderick Nunley, who was sentenced to death for the kidnapping, rape and murder of 15-year-old Ann Harrison in 1989, was scheduled to be put to death by lethal injection at 12:01 a.m. today.

Ann’s father, Bob Harrison, said his family was not surprised by the Supreme Court’s decision because of the many legal twists and turns the case has taken over more than 21 years. The decision came after a hectic day of appeals and counter-appeals in state and federal courts....

Missouri officials took the case to the Supreme Court on Tuesday night after the 8th Circuit Court of Appeals in St. Louis declined to lift the execution stay granted Monday by Chief U.S. District Judge Fernando Gaitan in Kansas City.

Gaitan ruled that the issue of whether Nunley, who had been sentenced to death by a judge, had the right to be sentenced instead by a jury needed to be studied further. The Missouri Supreme Court had earlier denied Nunley a stay on the same grounds, but Gaitan ruled he could not determine if its order was legal without clarification from the Missouri court.

The attorney general’s office filed a motion Tuesday with the Missouri Supreme Court asking for that clarification. The issue is likely to be litigated today.

October 20, 2010 at 09:12 AM | Permalink


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Why isn't his claim void for how long he has taken to raise it? He has had eight years, that alone indicates this is a hollow, pointless motion intended only to prolong his for another year or so.

Posted by: MikeinCT | Oct 20, 2010 11:09:12 AM

good question Mike. Maybe the Missouri Supreme Court should have been more thorough when they denied the stay. Unfortunately, the killer gets to live longer.

Posted by: DaveP | Oct 20, 2010 7:47:50 PM

Why should the Missouri Supreme Court have been more thorough? This was a lawless decision, a clear violation of AEDPA. Additionally, this guy literally had years to make his claim. The victim's family has been through enough. Gaitan should be subjected to withering criticism by Missouri's congressional delegation until he resigns. He is a disgrace. We kept one pro-criminal judge off the federal bench in Missouri (Ronnie White), so why in the world did Bush appoint this disgrace? And the Eighth Circuit panel, with its disgusting reference to the quality of Gaitan's lawless opinion should resign too.

And the Supreme Court doesn't escape blame here either. The Supreme Court has to rein in hack, pro-criminal judges like Gaitan. If it doesn't, the suffering of the victims' family is on its head as well. If the Supreme Court continues looking the other way at out-of-control federal judges and stays of execution (Judge Chatigny, Judge Fogel, Judge Gaitan, Judge Merritt), it won't be able to complain if a sensible Congress decides that federal courts simply have no business in state death sentences.

Ann Harrison's parents deserved better from the federal judicial system.

Posted by: federalist | Oct 21, 2010 9:22:05 PM


in a capital case, the courts should always be thorough. Here,the Missouri Supreme court granted the states motion to set an execution date. Apparently, they didn't "cover all the bases." Now briefing and arguments in January and a decision in a few months after that, hopefully sustaining the death sentence. I don't like it either but, Gaitan, the full 8th circuit, and 8 justices of the Supreme court wanted this to be clarified in state court. The 8th Circuit is one of the most conservative circuits in the country. I am sure if this was abuse, which on its face sure seems like it, SCOTUS would have vacated the stay. Perhaps Douglas can write and enlighten us on this case.

Posted by: DaveP | Oct 22, 2010 4:08:28 PM

Sorry, DaveP, but you're dead wrong here. This guy had his full go-round of state and federal habeas appeals/petitions. He then waits until the 11th hour to file this new habeas petition. He had years before that to argue that the Ring is retroactive decision by the Mo. courts was applicable to him despite the fact that he had pled guilty. He didn't. So now we have a federal court staying an execution so that state courts can determine the effect of state law? Whether or not these justices/judges think that "courts should be thorough" or whether the Missouri courts should cover all the bases on state law issues, the fact is that the law governs whether stays should issue. And the law, on its face is very clear--first, this is an abuse of the writ. Nunley could have raised this issue much earlier in the process, and a unanimous Supreme Court has said that should mean stay denied. Second, AEDPA doesn't provide any relief here.

The stay was irresponsible, and contrary to law.

Posted by: federalist | Oct 23, 2010 10:43:59 AM


Posted by: federalist | Oct 23, 2010 10:46:10 AM


I am not dead wrong. If you are right, then why was Gaitan's stay upheld by the full 8th Circuit without dissent and 8-1 at the Supreme Court? I don't like it either as I previously posted. Perhaps when Nunley and the state argue at the MO Supreme court in January, the justices will pepper the inmates attorney with default and abuse and dismiss it. I believe it is abuse also, my point was that the MO Supreme court should have said so. Then this delay in Nunley's execution most likely would not have been successful.

Posted by: DaveP | Oct 23, 2010 1:13:56 PM

Dave, SCOTUS likely didn't have the time or the inclination to deal with it. And judges screw up all the time, particularly when it comes to capital cases.

First off, federal courts have no business entering stays so that state courts can deal with issues of state law. That appears to have been what happened here. As for Nunley's federal claim (i.e., that the denial of a state created right violated the federal constitution), since it didn't go to innocence and could have been raised earlier (assuming, of course that the 8th Circuit didn't decide it in the original habeas decision--a relatively dubious assumption), where's the authority under AEDPA to deal with it again?

This was a disgrace, and it shows that federal courts simply should not be reviewing state death sentences at all.

Posted by: federalist | Oct 23, 2010 3:15:30 PM

should say "where's the authority under AEDPA to deal with it at all"?

Posted by: federalist | Oct 23, 2010 3:16:23 PM

And Dave, how do you get around the crystal clear Supreme Court case law stating that last minute stays, particularly those after a full round of habeas, shouldn't be granted.

A court considering a stay must also apply "a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay."

Nunley had years to bring this claim into federal court. He did not.

Posted by: federalist | Oct 23, 2010 3:19:09 PM


for the record. I think Nunley's attorney's have alot of balls holding off on this until a few days before the execution. When I read of their argument, I was sure that it would be regarded as frivilous, abusive, defaulted, etc. I was surprised when every level of federal court would not let this execution proceed. This is one of the most obvious cases of abuse of the writ I have seen. Unfortunately, the federal courts want something concrete from the Missouri Supreme Court. If it was such a simple matter as we both seem to agree, why didn't the MO Sup Court just issue a quick summary denial with an explanation? They ordered briefs and told the attorneys to be ready for oral arguments in Jan 2011. I would like Prof Berman or Kent to explain this to us. If I was the MO Atty general, I would have skipped the petition to ask the full 8th circuit and appealed directly to SCOTUS. They might have had more time to deal with it, maybe.

Posted by: DaveP | Oct 23, 2010 4:43:01 PM

"Unfortunately, the federal courts want something concrete from the Missouri Supreme Court." Apparently, they do. The point is that AEDPA says otherwise.

The Missouri Supreme Court is hopefully being cautious.

And hopefully when persons of sense take back Congress, we can have amendments that further deal with this problem.

Gaitan should never hear another death penalty case again.

Posted by: federalist | Oct 23, 2010 6:39:27 PM


agreed. I am sure you recall Gaitan initially ruled against the Missouri protocol until the 8th circuit reversed him. It is always amazing how attorneys and certain judges try to get around Supreme court decisions and AEDPA. Hopefully, the Missouri Supreme Court rules that Nunley defaulted. Then lets see Gaitan try to find a way around that.

Posted by: DaveP | Oct 23, 2010 7:35:12 PM

The Supreme Court, unfortunately, is not much better. Remember the mass Baze stays? Well, the bottom line is that a good portion of them were last-minute filings--so why was the Supreme Court rewarding last-minute filings with stays? There is specific language in Court opinions saying that stays are improper.

I well remember Gaitan. My assessment of that pro-criminal judge stands.

Posted by: federalist | Oct 23, 2010 11:17:47 PM

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