CHI, EX PARTE HELIBERTO FROM TARRANT COUNTYTo judge by the dissents, the court felt under pressure to approve a new method to allow executions to resume, but Judge Tom Price thought the ruling was premature, from his dissent:
No fair-minded citizen approves of the execution of an innocent man. As judges, we are only a little less appalled at the prospect of executing a man without due process of law. We should be equally hesitant to execute a man in a manner that would violate his Eighth Amendment guarantee against cruel and unusual punishment. We are expected to insist upon all ordinary process to protect against such an unpalatable result.
As the Court acknowledges, (39) the applicant has alleged, inter alia, that the first, anesthetic drug is not adequately administered under our lethal-injection protocol. He has thus stated a claim that, if true, would seem to entitle him to relief under Baze. (40) Moreover, because a challenge to the particular method of execution was not yet ripe at the time these applicants filed their initial applications for writ of habeas corpus, those claims were factually unavailable at that time and may be brought in a subsequent writ application. (41) When a claim in a subsequent writ application states facts which, if true, would entitle the applicant to relief, and also includes a pleading of facts sufficient to establish that the subsequent writ application is not abusive, Article 11.071 contemplates that it be returned to the convicting court where the writ issues as a matter of law, and the convicting court can proceed with whatever factual development it deems appropriate, at its discretion. (42)
Now that the Supreme Court has provided the applicable standard, we should allow the litigation to proceed in accordance with the statutory scheme. It should be easy enough to litigate whether the Texas protocol for lethal injection, as actually implemented by the Director of the Texas Department of Criminal Justice, Correctional Institutions Division, passes Eighth Amendment muster. There can be only two outcomes to such litigation, if it is allowed to proceed on the merits. Either (after adequate discovery and factual development below) our protocol (as implemented) will be deemed substantially similar to Kentucky's, and hence, constitutional, or it will be found lacking in some respect (probably involving the procedures for assuring that the first drug is adequately administered). If we find substantial similarity, that will end the litigation--in this and, presumably, every other capital writ that raises the issue, so long as the protocol is maintained and followed. If not, then the Director should know how to modify the protocol to achieve a constitutionally acceptable method of lethal injection, and the matter will be put to rest soon enough. It is only a matter of time. Still, the plurality denies the applicant a state forum to develop the issue, though his pleading is sufficient. (43) I am at a loss to understand why.
Apparently the Court will not tolerate actual litigation of the issue if that means the death machine meanwhile must stand idle. But we cannot fix the machine while the cogs are turning. I would maintain the stays of execution in these causes and return them to their respective district courts for ordinary factual development. Because the Court does not, I am compelled to dissent. (44)
Similarly, Judge Johnson's dissent emphasized the hasty dismissal of Chi's claims without even giving them a hearing:
That's pretty strong language - "a door to a brick wall" - Judge Johnson used to describe the majority's position!
Chi, Alba, and all the other cases being held for them, hang on a single issue-the constitutionality of the Texas lethal-injection protocol-that has never been subject to a hearing of any kind. Certainly the Texas protocol is similar to the Kentucky protocol in the kind of drugs administered and some of the training standards for executioners and dissimilar in other ways, such as the amount of each drug used. Remaining at issue is whether the Texas protocol has safeguards that are at least at the level of Kentucky's practices-approved by Chief Justice Roberts and excoriated by Justice Ginsberg. Due process requires that there be, in at least one case, a hearing that considers the Texas safeguards to determine whether they pass muster. Without a hearing, we cannot say whether applicant does or does not have a clear right to relief.At this point, we cannot say whether applicant's allegations, if true, entitle him to relief. To dismiss them without a hearing of any kind by saying that his claims have no merit turns the writ of prohibition into a door to a brick wall.
Judge Hervey, in an opinion representing a plurality of CCA judges (4), characterized the lethal injection procedures analyzed in Baze as "materially indistinguishable from Texas' lethal-injection protocol." Judge Cochran's concurrence similarly concluded the procedures were the same based on:
a post-Baze supplemental response from the Texas Department of Criminal Justice (TDCJ) that graphically demonstrates the similarities between the Texas lethal-injection protocol and that of Kentucky which was upheld by the United States Supreme Court in Baze. (4) TDCJ's comparison is based primarily upon data in the TDCJ Execution Procedural Manual which was attached to applicant's Petition for Writ of Prohibition. (5)In other words, Judge Cochran (and Judge Womack who joined her opinion) read TDCJ's post-Baze communique to the court and decided the factual issues without the need for any sort of adversarial procedure to vet the matter. Whatever TDCJ says, goes, I guess.
So there you have it. Texas currently has 13 executions scheduled, beginning with Karl Chamberlain two days from now. FWIW, Craig Watkins' Dallas DA office has been the most aggressive in pushing for quick execution dates - 4 of the executions scheduled post-Baze are from Dallas County; no other county including Harris has more than one.
UPDATE: Ohio's high court actually held a hearing and decided their state's three-drug protocol didn't meet the new Baze standard.