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September 4, 2012

Intriguing account of how Justices deal with last-minute capital appeals

This new Sidebar column by Adam Liptak in the New York Times, headlined "To Beat the Execution Clock, the Justices Prepare Early," provides details of how SCOTUS handles capital cases as a scheduled execution looms. Here are excerpts:
[The Supreme] court goes to extraordinary lengths to get ready, and its point person is a staff lawyer named Danny Bickell.   “Cases where there is an execution date,” he said with a sigh, “that’s where I come in.”  Mr. Bickell’s formal title is emergency applications clerk, but capital defense lawyers have an informal title for him, too.  They call him the death clerk.

In remarks at a conference of lawyers specializing in federal death penalty work..., Mr. Bickell provided a rare inside look at the Supreme Court’s oversight of the machinery of death in the United States. It starts with a weekly update.

“Every Monday morning,” Mr. Bickell said, “I put out a list to the court of all the executions that are scheduled in the country in the next six or seven weeks, and that gets distributed to all of the justices.”

The Supreme Court clerk’s office is famously helpful to lawyers who have questions about the court’s rules and procedures, but in capital cases it goes further.  “As the date approaches,” Mr. Bickell said, referring to impending executions, “I will be in touch with the attorney general’s office. I will be in touch with you, if you are representing the inmate, and with the lower courts, trying to figure out what is pending below and what is likely to make its way up to the Supreme Court.

“Once we make contact about 10 days or two weeks before the scheduled execution, I will start asking you to forward me everything that you file in the lower courts.  Once you forward it to me, I forward it on to the law clerks and to the justices so that they can begin reviewing the case.”...

[I]ndividual justices almost never rule by themselves on requests to halt executions.  “I would say 99.9 percent of the time the circuit justice is going to refer the application to the full court, and all nine justices are going to act on the application [for a stay],” Mr. Bickell said.

He added that the court always makes sure it can rule on such applications in time for its decision to matter, even in states not inclined to wait for word from the justices.  “The court won’t always act on it by 7 o’clock,” he said.  That hour, 7 p.m., is important because it is when Texas executes people, Eastern time.  The state has executed seven inmates this year.

“If we’re getting to the point where we’re short on time — it’s 6:30 or 6:15 for a scheduled 7 o’clock execution — I will call my contact” at the state attorney general’s office to see “whether they’re going to go forward with the execution while the case is pending or if they’re going to hold off and wait,” Mr. Bickell said.

If the state will not wait, the court will give itself time to think and to vote.  That responsibility again falls to the justice in charge of the judicial circuit.  “If we’re told they’re going to go forward with it and they’re not going to wait,” Mr. Bickell said, “the practice of the court recently — this has happened with Justice Thomas a few times last term — is the justice will issue a temporary interim stay.” Justice Clarence Thomas oversees the 11th Circuit, which covers Alabama, Florida and Georgia.

September 4, 2012 at 01:33 PM | Permalink


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