Missouri completes first post-Glossip execution

As reported in this National Law Journal article, headlined "Supreme Court Rejects Plea to Strike Down Death Penalty," not a single US Supreme Court Justice seemed at all interested in re-considering the basic consitutionality of the death penalty as Missouri moved forward with the first US execution since the Supreme Court's Glossip ruling upheld the basic consitutionality of the death penalty.  Here are the details:

The U.S. Supreme Court on Tuesday night turned away a full-scale challenge to capital punishment in the case of a convicted murderer in Missouri set for execution at 6 p.m. Without comment or dissent, the court rejected multiple appeals from David Zink’s lawyers.  Missouri Gov. Jay Nixon also denied clemency for Zink, who was found guilty in the brutal 2001 murder of a 19-year-old woman.

Lawyers for Zink had earlier invoked U.S. Supreme Court Justice Stephen Breyer’s recent death penalty dissent in seeking a stay. Some commentators saw Zink's case as an opportunity for the full court to reexamine the constitutionality of the death penalty, as Breyer urged in the dissent.  But the court’s action late Tuesday dashed those hopes.

Zink’s execution by lethal injection was the first since the high court issued Glossip v. Gross on June 29.  In Glossip, a 5-4 majority upheld the use of a controversial drug in lethal injections.  Breyer, joined by Justice Ruth Bader Ginsburg, wrote a lengthy dissent questioning whether capital punishment, as it is now carried out, is constitutional....

Richard Sindel of Sindel, Sindel & Noble in Clayton, Missouri, another of Zink’s lawyers, said in an interview Tuesday that the legal team decided to cite Breyer’s dissent because it reflected his and Ginsburg’s long experience in dealing with the death penalty.  “They’ve been at it a long while,” Sindel said.  Unlike the late justices Thurgood Marshall and William Brennan Jr. who dissented from the death penalty “as a matter of course,” Sindel said Breyer’s dissent was “a different animal,” full of detailed analysis and detail on why capital punishment is not working.

Late Tuesday morning, Missouri Attorney General Chris Koster filed a brief with the Supreme Court urging it to reject Zink's appeal as "meritless" and procedurally flawed. Addressing the Glossip dissent, the brief stated, "A two-justice dissent does not establish a new rule of constitutional law made retroactive to cases on collateral review."...

On Monday, a federal judge considering Zink’s appeal also made short shrift of the Breyer dissent.  U.S. District Judge Beth Phillips in the Western District of Missouri wrote: “The court is not inclined to rely on the dissenting opinion in Glossip to declare the death penalty unconstitutional when the majority opinion clearly states that the death penalty is constitutional.”