Monday, June 09, 2008

"A door to a brick wall": CCA approves Texas lethal injection protocols without a hearing

After a last minute stay of an execution last week, the Texas Court of Criminal appeals today approved Texas' lethal injection procedures, clearing the way for Texecutions to resume. Here are the relevant opinions:






To 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)

Though he's historically an avid death penalty supporter, one almost notes a tone of sarcasm in Judge Price's comment that the majority could not bear for the "death machine" to "stand idle."

Similarly, Judge Johnson's dissent emphasized the hasty dismissal of Chi's claims without even giving them a hearing:

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.
That's pretty strong language - "a door to a brick wall" - Judge Johnson used to describe the majority's position!

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.


Anonymous said...

Maybe if these bozos had filed their appeals earlier, the TCCA wouldn't have slammed the door in their face. Lethal injection claims have been percolating for years.

Anonymous said...

The timing of those appeals is not an accident. They wait until the very last minute to force the court to stay the execution until the merits of the appeal can be judged. Most of the arguments are bogus anyway.

Oh so the anesthetic drug is not adequately administered? Did these killers use anesthetics on their victims? If you don't like the anestietics how about we just don't give them to you all all!

Now hurry up and die.

Gritsforbreakfast said...

What are y'all talking about with this last-minute appeals crap? That doesn't apply at all to this post or this case. The Chi decision was based on the Baze case that was decided a few weeks ago, it's not a last-minute appeal. It was filed last year and the decision was based on just-announced SCOTUS case law. Try to match your cliche'd arguments to the appropriate fact situations, at least.

And to the second commenter - personally, I don't judge the morality of my own actions, nor the state's, by comparing them to those of a murderer. It's bizarre to me that that you do.

The day's going to come when the routine denial of access to the courts - the "door to the brick wall" - is going to cause the execution of an innocent person if it hasn't already. If we're going to have the death penalty, the CCA needs to stop cutting corners and provide due process on the way to the death chamber.

In fact, most restrictions by the court on the death penalty - bans on executing the mentally retarded, mentally ill, juveniles, etc. - came because Texas wasn't providing due process and SCOTUS disallowed the executions. If the death penalty is ever abolished, it will likely be because Texas courts pandered to fools who spout spurious comments like "hurry up and die." If you support the death penalty, you have vested interest in the courts doing things the right way.

Anonymous said...

It's always the same with you ACLU types...."there's never enough due process" or "there's no due process", or "they have no access to the court system"....makes me sick. Historically, there's always been access to the courts for people on Death Row (whether they want it or not); in fact one might believe they have too much access since many, many inmates have filed countless appeals and requests for stays (many for bogus reasons). And I have yet to see any suggestion in ANY legal publication or brief that there is "routine denial" to the appeals court system in Texas--in fact, it's the opposite: a death penalty conviction brings an automatic appeal. It's not about cutting corners, it's about the fair, but expedient, administration of justice to all parties, including the victims and victims' family. You see, Grits, what you ACLU types forget is there should also be fair (but swift) administration of justice for the VICTIMS of these heinous crimes, too....and not at the pace at which the condemned and their attorneys want it to be.

If you're against the death penalty, just come right out and say it. But don't obscure your arguement against the death penalty by telling those who do support it that it's in our interest that the courts "do the right thing", which is an implication that they, for years, have not. They have, to the best of their abilities (Houston Chronicle reporting notwithstanding), and will continue to do so. No one has ever proven that an innocent man has ever been executed. So, to cloud this argument with that suggestion, without absolute proof, is incorrect....and shameful (at least to me). Typical ACLU scare tactics.....nice try though!

Gritsforbreakfast said...

Uh, ACLU types like Cathy Cochran, you mean, or Tom Price. You've got a third of the CCA signing opinions saying there should have been more due process on the Baze claim. And the GOP dominated US Supreme Court routinely bench slaps the CCA over capital cases. It's SCOTUS who's most prominently offered up the "implication that they, for years, have not" done the right thing.

Also, I've not worked for ACLU for two years. I don't claim them and I'm sure they don't claim me. Try a different smear tactic - simply repeating "ACLU" over and over in contexts where it's not relevant is a pretty pitiful argument. They weren't involved in this one way or the other.

Regarding access to appeals, we've had a bunch of innocent people exonerated from death row, so your vision of "swift" justice would have ensured the execution of innocents. The Cameraon Willingham case I linked to above IMO is a case of an innocent person actually executed. (Read the link before you say otherwise.)

Contrary to your statements, I don't think it does the victims' families one iota of good if Texas kills an innocent person.

Finally, your insistence that I oppose the death penalty ignores what I've actually said about the subject, so I won't bother debating the drivel you've issued on the topic. I suppose it's easier to argue against a straw man of your own making instead of engage in an honest debate, but for my part I find it a boring cycle to engage in after a while.

Gritsforbreakfast said...

I should add the Chi case wasn't an innocence claim. I was reacting to the general comments about lengthy appeals.

Anonymous said...

You can think and feel however you want....I wasn't smearing you with the label "ACLU", I was refering to a particular train of thought that is so often expressed by them.... Anyhow, we agree about one thing, I, too, don't feel like arguing with you over this issue either as neither one of us will agree to the other's line of thinking. I just simply wanted to point out that in EACH death penalty case, the anti-D.P. coalition comes out, attacks the system and forgets about the victim. To me (IMHO), that's akin to trampling on someone's grave. If you're ok with that, good for you.

Anonymous said...

As part of the anti-dp coalition, I would like to respond to the "forgetting the victims" statement. The organization I represent does not forget the victims or their families in fact they are represented on our board of directors. Our grief is over all the victims involved in this process, which of course includes the families of the victims of the crime, the victim(s), the people in the system who participate in the "gift" of a death sentence, the prison employees who must execute the inmate, and the family members of the executed inmates. All are victims.

If our society and government was truly concerned about victims then we would take the massive amount of resources we expend on executing people and address the root causes that create death row inmates (mental health resources, child abuse prevention, education, poverty, drug abuse, etc...) We all know that prevention is much more cost effective and represents a more positive contribution to our society than sweeping the problem under the rug with frequent and hurried executions.

If Texas is so concerned about victims, why does the death penalty get a blank check and victims' services always struggle for funding?

Anonymous said...

Door to a brick wall?

Come on, be honest buddy. The 8th amendment issue regarding the particular drugs was just decided by the US Supreme Court. There was no need for any new hearing and frankly I'm suprised the Texas court even bothered writing an opinion.

The cost of execution would be lower if not for these frivilous appeals.

Gritsforbreakfast said...

So now I'm part of the anti-D.P. coalition, 9:03? ... funny, I missed all the meetings!

If you want to trade barbs instead of have a conversation, it'd be just as easy to say "if you're fine with executing an innocent person in the name of 'swift' executions, good for you." Are you?

My personal view is that the death penalty debate is overblown. As a practical matter I'm more concerned about the innocent person set up by a Tom-Coleman type who gets a 60 ye0ar drug sentence than with the fate of the guilty who go to death row. Though I was taken as being facetious, it's my personal view that LWOP is a worse punishment than the death penalty. Everybody dies - who knows what comes after? We know life sucks living in a cage for the rest of your born days. After all, there's a reason when you put down a dog it's called "putting it out of its misery."

So I think it's a legitimate punishment, but you HAVE to make sure you get the right guy because it's irrevocable. We're seeing innocent people leave death row and DNA exonerations 27 years after the fact when new technology invented a way to clear them. Fix the errors, IMO, and until then don't complain to me about the appeals.

I personally think LWOP is a better outcome for victim families. They don't spend decades waiting to see what will happen. You don't get this phenomenon where execution dates are set and retracted over and over. The punishment is harsh and certain, and the appeals terminate much sooner. That's real closure. The death penalty is a false promise of "closure," both because of its uncertainty and because revenge can't ever bring back the loved one.

I also think the D.P. is incredibly expensive as well as time consuming - a much more expensive and lengthy process than LWOP. Plus, I've never seen any credible evidence it provides a deterrence. That's frequently argued, but the numbers don't back it up.

I'm not an abolitionist on the death penalty, just a utilitarian. I don't think for a moment our society has some overarching value that says "every life is sacred" or some such nonsense. Just look at public policy on myriad other topics from cigarettes to traffic to drugs (legal and illegal) where public policies historically caused deaths out of deference to profit, power or ideology. Simultaneously, I don't think "revenge" is a legitimate public punishment interest.

In other words, my view on the topic is complex and personal; I'm not on their "side," and I'm definitely not on yours.

Gritsforbreakfast said...

@ 10:51: Send your complaint about the "door to a brick wall" comment to CCA Judge Johnson, who authored it. I'd check your facts first though before you called her own it. If what you're saying were true, the Sonnier case wouldn't have been stayed.

Baze set standards for implementing LI, and Texas' was different than Kentucky's. Baze wasn't a green light, it was a policy prescription that state courts are supposed to guarantee they're following. She thought that SCOTUS demand should at least merit a hearing before moving forward, and it's not an unreasonable position.

Anonymous said...

The State of Texas needs to bring back "Old Sparky" or as I like to call it "Sizzlin'Sally"

Electrocution is Painless.

Death experts say the electrocution is painless for the person being executed.The theory is that the electrical current hits the brain before the nerves can relay the message that the sensation hurts.Hence,when the person is seen thrashing around in spasms,it isn't a response to pain,it's just the body natural and involuntary to the electrical current.

Lorraine S. said...

You know, the amount of pure venom that people spew when the subject of the appeals process for the convicted comes up never ceases to amaze me. Do they ever read what they write? I don't know how they can talk about "murderers" when they are clamoring for murder and endorsing violence themselves. I guess they can't see the obvious. I just wonder how that thinking might change if the condemned person who was appealing his death sentence was one of their family members. Huh? Then what? And, who in their right mind could possibly have a problem with staying executions until a legitimate legal question has been resolved? Why the big rush to kill

gamefan12 said...

I definitely beleive in the death penalty. I think lethal injection is the way it should be.
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Anonymous said...

Hey, gamefan12...if you really do "beleive" what you say and, in fact, are an attorney then perhaps you ought to spell believe correctly?