July 10
LOUISIANA:
Kevin Daigle guilty of 1st-degree murder of State Trooper Steven Vincent
Kevin Daigle is guilty of 1st-degree murder of Louisiana State Trooper Steven
Vincent.
The 12-person jury went into deliberations at 3:47 p.m. (Tuesday) and returned
to court with a verdict at 4:05 p.m.
Daigle has been described as pure evil-- and the state successfully portrayed
him as such: a mean, heartless, cold- blooded killer who thought nothing of
gunning down Trooper Steven Vincent, a peace officer who, ironically, tried to
help Daigle who appeared stranded on the side of the road. Calcasieu District
Attorney John DeRosier says Vincent’s death has caused such suffering.
"He executed that policeman, a very fine young man, a very fine police officer,
and look what it's done to his family. It's just devastated them, it's just
devastated. He's got a large family, good family man, and there's just no
reason for this. And we have to set an example," said DeRosier.
The jury began leaving the courtroom at 3:45 p.m. Tuesday and word came of a
verdict scarcely 15 minutes later. Prosecutors say the actual time deliberating
may have been as few as 3 minutes.
“We received the verdict at 4:03 and it took some time to get it to us so, it
was a very short time they were out. Three to three and a half minutes,” said
DeRosier.
Daigle attorneys put on an intoxication defense arguing Daigle was so drunk, he
didn’t know or remember what he did.
But lead prosecutor Lea Hall said Daigle’s actions showed he knew exactly what
he was doing.
"You've got it on camera, of him aiming and pointing a weapon at him and
connecting on a man fleeing, a man trained on how to defend himself, and was
able to score a hit. And further, when he stood over him and tried to rob him
of his possessions and of his gun, his handcuffs, his keys, tried to steal a
state police unit--that's what lets me know that he meant what he was doing,"
said Hall.
The jury remains sequestered for the penalty phase, when they decide if Daigle
should get life in prison or be executed.
"I know what they should do, I know what is reasonable and appropriate in this
case, even though I don't relish doing it. But I think the death penalty is in
fact appropriate in this case," said DeRosier.
Defense attorneys declined to be interviewed after the verdict.
The penalty phase gets underway Wednesday morning in Lafayette.
For Daigle to receive a death sentence all 12 jurors must vote for execution.
A non-unanimous vote would result in life in prison.
Daigle was on trial for the 2015 shooting death of Vincent, who he killed
during a traffic stop near Bell City.
The state rested its case Tuesday morning and the defense put on its side,
starting with dash cam video and audio from inside the police car where Daigle
was put after his arrest.
In the video the jurors could not see Daigle for upwards of an hour but could
hear him him screaming at the top of his lungs, cursing, crying and pleading
that he was hot and hurting and that he had been beaten.
Daigle was cuffed and maybe otherwise restrained, repeatedly pounding his
fists, feet, or both in tandem, in the police car. There were periods of quiet
when Daigle apparently fell asleep.
Then he’s heard pleading, “What did I do?” and saying he didn’t do anything.
Daigle was eventually transported to a hospital where he was swabbed for DNA
and his blood tested to determine his blood alcohol level which, according to
testimony, was around 0.2801.
(source: KPLC TV news)
SOUTH DAKOTA:
Brown County native to defend Iowa man against death penalty in federal court
A Brown County native is preparing to defend an Iowa man charged with murder
and facing the death penalty.
Michael Lahammer is the defense attorney for Matthew Robbins, who is accused of
fatally shooting a 51-year-old man during a robbery.
Lahammer said his client, Robbins, is accused of shooting James Booher while
trying to rob him of methamphetamine and money in 2014. Booher went missing May
31, 2014.
The trial will be held in federal court. Lahammer previously represented
Robbins in a separate case, which is why a judge appointed him to represent him
again.
"As a service to the court, I agree to take a certain number of court
appointments that is less than half of my hourly rate," Lahammer explained. "In
this case, I represented Mr. Robbins five years ago on his initial charges — we
got a hung jury. We were preparing to retry to the case, and we came to plea
terms to a lesser charge, and he's been serving a lesser sentence since that
time. "
That was in 2014, when Robbins admitted to one count of being a felon and
unlawful drug user in possession of a firearm as part of the plea agreement,
Lahammer said.
The murder charges against Robbins were filed in June.
"Because I represented Mr. Robbins previously and we have a good relationship,
the court asked if I'd represent him in this case. He was happy I was
representing him again," Lahammer noted.
Lahammer said since the death penalty is on the table in this case, it could
likely span 2 years before a trial is held.
The possibility of his client being sentenced to death is not lost on Lahammer.
"It accentuates what we already have on our shoulders. In the federal court
system, your clients are looking at a lot of time. They're not going to receive
a few years or five years. I've had clients that have life in prison or 20 to
30 years," Lahammer said.
"The more criminal history they have the higher sentence they're going to
receive. Anybody who practices in federal court has a lot on their shoulders
because there's a lot at stake with prison time. With the death penalty you
realize, it's in the back of your mind, that your client could be put to death
ultimately," he said.
What sparked his passion for law was being involved in debate as a junior high
school student in Aberdeen.
"Ever since junior high debate and that kind of activity really got me into the
law and arguing. That's all I ever wanted to do was go to law school and be a
lawyer," he said.
Lahammer is the first of his family to acquire a degree in law. He was raised
on a farm near Bath and is a Northern State University alumnus.
"I have no relatives that are lawyers. My dad was a paint contractor and my mom
was a housewife," Lahammer said proudly.
After graduating from high school, Lahammer served in the U.S. Marine Corps for
12 years before resigning in 1988 to continue his education in Aberdeen.
"I fully intended to do four years and get out and go to college. I kept
getting promoted with 12 years in. They were defunding the Vietnam era GI bill,
so in 1988 I resigned my commission," Lahammer explained.
He credits the work ethic he learned while serving in the U.S. Marine Corps to
being able to complete both degrees in a short period of time.
"I started Northern in January of 1989. I went year round at Northern into May
of 1991 for my four year degree. I started in at the University of Iowa College
of Law and went year round and finished my degree in 2 years 1 month,"
"I think the Marine Corps gave me the tenacity and discipline to get through it
with my eye on the goal — which was finishing everything as close to 48 months
as possible," Lahammer said.
While working towards his undergrad degree in business administration at
Northern, Lahammer met his future wife.
"She's from the Roscoe area. We got married and moved to Iowa, and she
graduated from Iowa's nursing program," Lahammer said of his wife, Lorna
Bukaske.
After passing his bar exams, Lahammer worked within the the federal court
system for 8 years before getting into a private practice in 2002.
Now a seasoned veteran in the world of law and order, Lahammer believes a
degree in law can open up so many more doors than may be apparent.
"There are so many areas of law. You don't have to be a trial attorney, you can
do administrative law, family law, mediation — so many areas that a law degree
can open up for you that I would encourage anyone is interested," he said.
Now Lahammer is putting together a case for why the death penalty should not be
sought for his client. While the work may be tedious, it's what Lahammer has
always wanted to do.
"I've done everything from driving while intoxicated to murder and kidnapping,"
Lahammer said of the cases he has worked.
"In this last one we had well over 100,000 documents in relation to this death
penalty case," Lahammer said. "It takes a tremendous amount of organization,
but also I read every piece of paper so it's very time consuming, and it does
involve weekends and late nights, but it's fascinating."
(source: Aberdeen News)
CALIFORNIA:
Death Sentence Recommended For Man Who Killed Ex-Lover & Cellmate----Convicted
felon Rigoberto Villanueva stabbed his ex to death with a screwdriver in
Whitewater and strangled his prison mate in Banning.
A Riverside jury Tuesday recommended the death penalty for a convicted felon
who fatally stabbed his ex-girlfriend along Interstate 10 in Whitewater and,
four months later, strangled his 82-year-old cellmate at the Smith Correctional
Facility in Banning.
Jurors deliberated just over 3 days before unanimously recommending that
42-year-old Rigoberto Villanueva of Fontana receive capital punishment for the
2016 killings of Rosemary Barrasa, 37, and Tom Carlin.
Last month, the same jury convicted Villanueva of 2 counts of 1st-degree murder
and found true a special circumstance allegation of taking multiple lives,
making the defendant eligible for a death sentence.
Riverside County Superior Court Judge Mac Fisher scheduled a sentencing hearing
for Sept. 20 at the Riverside Hall of Justice.
According to prosecutors, the 6-foot, 2-inch, 300-pound defendant had been in a
relationship with Barrasa in the late 1990s, and in the fall of 2015, he
persuaded her to join him at his brother's residence in Salida, Northern
California.
Deputy District Attorney Anthony Orlando said the defendant and Barrasa lived
together at the property over the ensuing six months, and during that time,
Villanueva became abusive, inflicting injuries to the victim's arms and legs
and cutting away some of her hair.
Barrasa left the property at the end of April 2016, heading to Fontana to stay
with a friend. Within a week of her leaving, Villanueva went searching for the
victim and arrived in the Inland Empire on May 7. Several days later, he
located Barrasa at her friend's residence.
"The defendant expressed that Barrasa had his heart, which Barrasa responded to
by laughing," Orlando said. "However, Barrasa seemed happy after talking with
the defendant."
Despite being happy to see him, the victim told friends that she was concerned
about Villanueva's behavior, and at least one witness recalled the woman
hesitating to get into his car on the night of May 11, 2016, according to the
prosecutor.
Shortly before 2 a.m. on May 12, Barrasa's body was located in Villanueva's
sedan, which appeared to have crashed on eastbound Interstate 10, near Tipton
Road, in Whitewater. She had been stabbed 34 times with a screwdriver, with the
wounds patterned like an X across her upper body, according to Orlando.
California Highway Patrol officers encountered Villanueva a quarter- mile west
of the scene, walking in the freeway center median. When they attempted to
question him, the defendant took off running and resisted officers when they
caught up to him, prompting them to deploy a Taser to gain control and handcuff
him.
Villanueva was immediately jailed and charged with Barrasa's murder. He was
paired with Carlin in Housing Unit 17 at the Smith Correctional Facility.
Other inmates described Villanueva as extremely moody and sometimes physically
aggressive -- a deep contrast with Carlin, who was "happy-go- lucky" and
generally liked by the men in his cell block, according to a trial brief
prepared by the prosecution.
One inmate told sheriff's investigators that in the days leading up to Carlin's
murder, Villanueva had suggested his cellmate was a child molester, even though
the elder man was charged with felonious assault and making criminal threats --
not sexual offenses. Villanueva also conveyed to the same inmate that he wanted
to "choke" Carlin.
The prosecutor said that on the afternoon of Sept. 17, 2016, Villanueva knotted
a bed sheet and used it to strangle the victim, trying to make it appear as
though the senior had hung himself while sitting on the bedside commode.
Villanueva was charged with the murder and was relocated to a high security
unit at the Riverside jail.
(source: patch.com)
OREGON:
Oregon’s only woman on death row to get new trial: Judge says he’ll throw out
her child-torture murder conviction
A judge is expected to throw out the 2011 aggravated murder conviction of
Angela McAnulty, the only woman on Oregon’s death row, for the torture and
starvation of her 15-year-old daughter, Jeanette Maples.
McAnulty should get a new trial because her attorneys failed to adequately
represent or advise her during her trial, Senior Circuit Court Judge J.
Burdette Pratt said in a draft ruling.
Pratt has yet to finalize and sign the ruling, but The Oregonian/OregonLive
received a preliminary copy. The judge’s underlying finding isn’t expected to
change.
Among major lapses cited by the judge: Defense attorneys Steven Krasik and
Kenneth Hadley, both experienced capital punishment lawyers, made the highly
unusual move of supporting McAnulty’s decision to plead guilty when the
prosecution hadn’t agreed drop the death penalty as a possible punishment.
After a 15-day trial to determine McAnulty’s sentence, 12 jurors unanimously
chose the death penalty.
McAnulty is among 30 people on death row. Executions have been put on hold ever
since then-Gov. John Kitzhaber instituted a moratorium in 2011. Gov. Kate Brown
extended it during her tenure.
McAnulty’s case is one of the most notorious in modern Oregon history. Pratt
noted the evidence was “particularly gruesome” and that even one of McAnulty’s
trial attorneys “described it as the most indefensible case he had ever
handled.”
According to prosecutors, McAnulty singled out Jeanette to beat and starve
while allowing her other 2 children to sit at a table to eat dinner and watch
TV or play video games. Prosecutors said Jeanette’s blood was found in every
room in the house and that her mother used a vacuum cleaner to drown out the
sound of the beatings.
The teenager suffered open wounds so deep that one of them exposed her hip
bones, prosecutors said, and her only possession was a piece of cardboard she
used for a bed.
The girl’s teachers and classmates in Eugene noticed she was skinny and always
hungry. She later wrote a letter to a school official, saying she was denied
food at home, forced to eat chili peppers and ordered to sit on her knees for
long periods as punishment.
The Oregon Department of Human Services investigated by visiting the home, but
found it well stocked and closed the case without taking action to protect
Jeanette. The girl’s emaciated and battered body was found in the family’s home
in 2009.
Her stepfather, Richard McAnulty, pleaded guilty to aggravated murder for his
role in the death and was sentenced to life in prison with the possibility of
release after 25 years.
In 2012, the state agreed to pay $1.5 million to settle a wrongful death
lawsuit for the Department of Human Services’ failure to protect the teenager.
Most of the settlement when to her biological father.
In 2014, the Oregon Supreme Court upheld McAnulty’s conviction.
In the draft ruling, Pratt wrote that McAnulty’s defense team was rushed in
preparing for trial on Feb. 1, 2011. Less than 1 ½ months earlier, one of the
defense attorneys and his investigator had finished a 114-day trial of a father
and son who were convicted of killing 2 police officers in the 2008 bombing of
a Woodburn bank.
The attorneys had asked a Lane County Circuit judge to postpone McAnulty’s
trial, but were denied. Pratt found that the time crunch affected their ability
to call skilled mental health experts who could have tried to counter the
picture painted by the prosecution of McAnulty as a cold-blooded killer.
Experts could have testified, for instance, how McAnulty’s parenting was
affected by her own abusive childhood decades earlier and that her
lower-than-average intelligence and mental illness affected her decisions, the
judge said.
Such testimony could have shown that McAnulty was “not simply evil. ... Jurors
were never provided with neuropsychological evidence to assist them in
understanding the origins and causes of Petitioner’s behavior,” Pratt wrote.
According to previous coverage of McAnulty’s life, she lost her mother to
murder when she was 5. After high school, she abused drugs while living a
tumultuous life traveling around with a carnival worker. She had 3 children,
but all were taken by California authorities because of abuse or neglect.
McAnulty became a mother to 2 more children and ultimately was able to win back
custody of 1 of her older children, Jeanette.
It’s unclear when Pratt will issue his final opinion granting McAnulty, now 50,
a new trial. Portland defense attorneys Kathleen Correll, Bert Dupre and
Gregory Scholl represented McAnulty in her case requesting post-conviction
relief. They declined comment.
Representatives from the Lane County prosecutor’s office and the Oregon
Department of Justice didn’t immediately respond to a request for comment.
Krasik, 1 of McAnulty’s original trial attorneys, said he’s relieved to hear of
the judge’s draft opinion.
“This is a welcome step towards a fair and rational disposition of this tragic
case,” Krasik said Tuesday in an email to The Oregonian/OregonLive. “I support
any court decision that undoes Angela’s misguided, horribly disproportionate,
death sentence.”
(source: oregonlive.com)
USA:
Lethal injection opinion from DOJ OLC threatens FDA's claims-based
interpretation of 'intended use'
Introduction
In an opinion dated 3 May 2019, the Office of Legal Counsel (OLC) in the US
Department of Justice (DOJ) concluded that an article intended to effectuate
capital punishment by a state or the federal government is not subject to
regulation by the Food and Drug Administration (FDA) under the Federal Food,
Drug and Cosmetic Act (FDCA).
In reaching this conclusion, the OLC interpreted 'intended use' – a
foundational doctrine in food and drug law – to include a product seller's
knowledge of actual use and the "circumstances surrounding distribution" of the
product. The OLC's opinion thus departs from the FDA's 2015 proposed rule
interpreting 'intended use' under 21 CFR §§ 201.128 and 801.4. Because OLC
opinions are binding on agencies such as the FDA, the opinion raises questions
regarding the scope of regulated firms' liability under the misbranding and new
drug and device approval provisions of the FDCA.
Background
In 2015 the FDA proposed to revise the existing regulatory definitions of
'intended use' at 21 CFR §§ 201.128 and 801.4 by eliminating the knowledge
prong of the definitions.(1) Industry – particularly the Medical Information
Working Group (MIWG) –had urged this change through citizen petitions and
litigation and supported the proposed revision.(2)
In its proposal, the FDA explained that changes to these provisions were needed
"to reflect how the agency currently applies them to drugs and devices".(3)
However, without notice that it was considering alternative approaches, the FDA
finalised the rule in January 2017, replacing the knowledge prong with an
entirely new sentence, creating a "totality of the evidence" standard.(4)
Industry groups filed a petition to stay and for reconsideration, challenging
the validity of the final rule and stating that the new definition of 'intended
use' exceeded the FDA's authority under the FDCA and that the lack of adequate
notice violated the Administrative Procedure Act.(5)
The FDA relented, first delaying the effective date of the rule(6) and then
staying it indefinitely.(7) When then-FDA Commissioner Scott Gottlieb announced
the delay, he stated as follows:
By delaying implementation of these portions of the final rule we are not
creating new policy, but instead reverting to the agency's existing and
longstanding regulations and interpretations on determining intended use for
medical products. These are the same regulations and interpretations that have
been in effect for decades.(8)
OCL's opinion
The OLC's opinion appears to have been issued as a result of litigation
involving the FDA's obligation to block the entry of misbranded and unapproved
drugs used under state lethal injection protocols. In 2011 death row inmates in
Arizona, California and Tennessee challenged the FDA's exercise of enforcement
discretion in allowing shipments of misbranded and unapproved sodium
thiopental, which was to be used in executions, to enter the United States. The
US District Court for the District of Columbia held that the FDCA obliged the
agency to refuse admission and issued an injunction that blocked the FDA from
releasing future shipments of unapproved or misbranded thiopental into the
United States. In 2013 the injunction was upheld by the Court of Appeals for
the District of Columbia Circuit and the DOJ declined to seek further
review.(9)
In January 2017 the State of Texas sued the FDA regarding shipments of
unapproved thiopental that the state had purchased from an individual doing
business in India under the name Harris Pharma. Initially, the state sought an
order compelling the FDA to take final actions on shipments that had been
detained. After the FDA issued a final detention order in April 2017 (which
cited Texas's submission that the imported thiopental "is a drug, because it is
intended to affect the structure and function of the body"),(10) the state
filed an amended complaint seeking the release of the drug.(11) That litigation
has been stayed since December 2017 to allow the parties to discuss a possible
resolution.(12)
The OLC opinion states that it was requested by the Attorney General. The key
points relating to intended use are as follows:
"When a prison official seeks to purchase an article essential to one of these
methods of execution, the seller will often know that the item will be used in
an execution and is thus 'intended' to affect the structure or any function of
the body." (Page 10, relying on structure and function prongs of statutory drug
and device definitions and regulatory definitions of intended use.)
"We are not concluding that the FDCA covers only 'drugs' or 'devices' that have
a medical or therapeutic purpose. For example, FDA has consistently regulated
other products that affect the structure or function of the human body for an
aesthetic, rather than medical or therapeutic, purpose (e.g., implants to
augment breasts, dermal fillers to correct wrinkles, and silicone injections to
augment buttocks and breasts). Likewise, FDA has long regulated drugs with
non-therapeutic or recreational uses, including narcotics, street drugs, and
their alternatives." (Page 24.)
The opinion also relies on the non-claims-focused elements of the regulatory
definitions of intended use, including the "circumstances surrounding
distribution" language and the language addressing temporally shifting intended
uses.(13)
Overall, the opinion is not consistent with the claims-based interpretation of
intended use and it departs from the approach set out in the FDA's 2015
proposed rule.
Scope and implications of OCL's opinion
The scope and implications of the opinion are unclear. On the one hand, the
interpretation of intended use could affect the liability of manufacturers in
cases (eg, off-label promotion investigations) in which the FDCA's misbranding
and new drug and device approval provisions are at issue. On the other hand,
the opinion goes to some lengths to limit the scope of its analysis, stating
that it does not address, for example, "whether [the] FDA has jurisdiction over
drugs intended for use in physician-assisted suicide". There are strong indicia
that the opinion will be limited in its practical effect to the specific
question of the FDA's authority to regulate articles used in administering the
death penalty, but nothing in the law or in FDA or DOJ policy would preclude
the federal government (or the qui tam bar) from relying on the opinion to
support an expansive reading of the intended use doctrine.
Footnote 1 of the opinion states that, in reaching its conclusion, the OLC
"solicited and considered the views of FDA and of the Office of the Associate
Attorney General". The footnote does not state precisely what position the FDA
took. It has been reported that former FDA Commissioner Gottlieb and former
Attorney General Jeff Sessions "had a heated argument" over whether execution
drugs could enter the United States without FDA oversight.(14)
As previously stated, OLC opinions are binding on federal agencies such as the
FDA.(15) As such, the agency has stated publicly that it will "follow the
conclusion of the opinion to the extent permissible" under the existing
district court injunction in Cook.(16)
OLC opinions generally are not subject to direct judicial review. However,
their validity may be contested in litigation in circumstances where parties
can establish that agency compliance with an OLC opinion adversely affects
them.(17) It is thus possible that prisoners could, in appropriate
circumstances, seek declaratory and injunctive relief against actual or likely
importation of drugs intended for use in lethal injection and thereby challenge
the validity of the OLC interpretation of the FDCA.
Endnotes
(1) 80 Fed Reg 57,756, 57,764-65 (25 September 2015).
(2) MIWG, Citizen Petition, Docket FDA-2013-P-1079, at 4, 15-19 (3 September
2013).
(3) 80 Fed Reg at 57,756.
(4) 82 Fed Reg 2193, 2217 (9 January 2017).
(5) MIWG, PhRMA & BIO, Petition to Stay and for Reconsideration, Docket
FDA-2015-N-2002-1977 (8 February 2017).
(6) See 83 Fed Reg 2092 (16 January 2018); 82 Fed Reg 14,319 (20 March 2017).
(7) 83 Fed Reg 11,639 (16 March 2018).
(8) Press Release, FDA, "Statement from FDA Commissioner Scott Gottlieb, M.D.,
on FDA Decision to Seek Additional Time to Reassess Rule that Would Have
Changed Longstanding Practices for How the Agency Determined the ?Intended Use'
of Medical Products" (12 January 2018).
(9) Beaty v FDA, 853 F Supp 2d 30 (DDC 2012), aff'd in part and vacated in part
sub nom. Cook v FDA,733 F.3d 1 (DC Cir 2013).
(10) FDA, Admissibility Determination re: Thiopental Sodium Imported by the
Texas Department of Criminal Justice (20 April 2017).
(11) Plaintiff Texas Department of Criminal Justice's second amended complaint
for declaratory and injunctive relief, Tex Dep't of Criminal Justice v FDA,
3:17-cv-00001 (SD Tex, 22 May 2017), ECF 36.
(12) Order Staying Case, Tex Dep't of Criminal Justice v FDA 3:17-cv-00001 (SD
Tex, 4 December 2017), ECF 52.
(13) 21 CFR § 201.128:
The intent… may be shown by the circumstances surrounding the distribution of
the article… It may be shown by the circumstances that the article is, with the
knowledge of such persons or their representatives, offered and used for a
purpose for which it is neither labeled nor advertised. The intended uses of an
article may change after it has been introduced into interstate commerce by its
manufacturer. If, for example, a packer, distributor, or seller intends an
article for different uses than those intended by the person from whom he
received the drug, such packer, distributor, or seller is required to supply
adequate labeling in accordance with the new intended uses. But if a
manufacturer knows, or has knowledge of facts that would give him notice, that
a drug introduced into interstate commerce by him is to be used for conditions,
purposes, or uses other than the ones for which he offers it, he is required to
provide adequate labeling for such a drug which accords with such other uses to
which the article is to be put.
See also 21 CFR § 801.4 (same, for medical devices).
(14) Laurie McGinley and Mark Berman, "Justice Department says FDA 'Lacks
Jurisdiction' Over Death-Penalty Drugs", Washington Post (14 May 2019).
(15) See Arthur H Garrison, "The Opinions by the Attorney General and the
Office of Legal Counsel: How and Why They Are Significant", 76 Alb L Rev 217,
242-43 (2012/2013) (describing legal and historical support). See also Citizens
for Responsibility & Ethics in Washington v US Dep't of Justice, 922 F.3d 480,
484 (DC Cir 2019) (describing the OLC's views).
(16) Josh Gerstein, "FDA Can't Control Death Penalty Drugs, DOJ Says", Politico
(14 May 2019).
(17) See, for example, complaint for declaratory relief, NeoPollard Interactive
LLC v Barr, 1:19-cv-00170-SM (DNH 15 February 15 2019) (contesting the OLC's
conclusion that the federal Wire Act applies to state lotteries); complaint,
N.H. Lottery Comm'n v Barr, 1:19-cv-00163-PB (DNH 15 February 2019) (same).
(source: lexology.com)
******************
Kavanaugh, Roberts Hold Death Penalty Power After Bitter Term
The gloves are off at the U.S. Supreme Court after a bitter death penalty term
that could be a sign of things to come, with Chief Justice John Roberts and
Justice Brett Kavanaugh now in control of how hard a line the post-Anthony
Kennedy court will take in capital cases.
With swing vote Kennedy out and Kavanaugh in, a more solidly conservative bloc
is taking an austere stance toward death row prisoners’ efforts to halt their
executions, while states seek to carry out what they see as long delayed
justice.
Though capital punishment has been a hot-button issue at the court for years,
it was particularly fraught this term, with liberal frustration showing in
late-night dissents over what they see as rushes to the execution chamber, and
conservatives equally frustrated with what they see as unwarranted delays and
misplaced prioritizing of convicts’ pain at the expense of victims.
It’s a long-simmering tension on the court that “reached a full-boil” this
term, said Dale Baich, a capital litigator at the Arizona federal public
defender.
Bernard Harcourt, another capital litigator and a Columbia law professor, said
that he’s “concerned that these new frictions at the Court may break bad, at
the expense of the condemned and their constitutional right to be heard without
the taint or shadow of this emerging bitterness.”
But against this bitter backdrop Roberts and Kavanaugh have emerged as the new
middle, by occasionally voting for the condemned, or by issuing relatively
moderate concurrences.
The New Middle
“For nearly 3 decades, Justice Kennedy served as a swing vote on the death
penalty issues. Now, there seem to be five solid votes to uphold death
sentences in almost every case,” said South Texas College of Law Houston
professor Josh Blackman.
Still, during heated exchanges, Kavanaugh and Roberts have at times staked out
relative moderate positions in contrast to the harder-line trio of Justices
Clarence Thomas, Samuel Alito, and Neil Gorsuch.
One of the court’s most controversial rulings of the term was a solid 5-4 split
along ideological lines, but Kavanaugh would write a concurrence in a factually
similar case later.
In February, Alabama death row prisoner Domineque Ray wanted his imam with him
in the death chamber, but the state only offered a Christian minister who was
on the prison staff.
A court divided along ideological lines gave the green light for Ray’s
execution without an imam, citing what it said was the last minute nature of
the request.
Justice Elena Kagan wrote the dissent for the liberal bloc, calling the state’s
practice discriminatory and the majority’s move “profoundly wrong.”
Ray’s execution sparked condemnation “from the entire political spectrum,” said
Robert Dunham, executive director of the Death Penalty Information Center.
In a similar case the following month, the high court granted a stay to
Buddhist prisoner Patrick Murphy. Thomas and Gorsuch noted at the time that
they would have ruled against him.
Kavanaugh wrote a concurrence siding with Murphy, but observing that the state
of Texas could just deny ministers to people of all faiths. The state later
took him up on that offer, changing its practice and barring all faith
ministers from the execution chamber.
The dispute sparked an unusual set of after-the-fact opinions weeks later,
revealing that Roberts, alone among the conservatives, agreed with Kavanaugh’s
approach.
Softening the Blow
Even in the strongest statement by the court that it was taking a hard-line on
capital claims, Kavanaugh threw “quite a big bone” in the direction of death
row inmates, said Deborah Denno, a death penalty expert at Fordham Law.
In April 1’s 5-4 decision in Bucklew v. Precythe, Gorsuch wrote the opinion
against Missouri death row prisoner Russell Bucklew, joined by the conservative
wing in full.
Bucklew argued the state’s preferred lethal injection execution method will
cause a gruesome execution, due to a rare disease that will cause tumors
growing in his head, neck and throat to rupture. He wants lethal gas instead.
But he can’t show the state’s method “superadds” pain to the death sentence,
Gorsuch wrote.
Delay tactics were on the majority’s mind there, too, with the conservatives
reasoning that condoning the longtime death row inmate’s argument would invite
others to play games with litigation to avoid execution. “The people of
Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them
deserve better,” Gorsuch wrote.
The Bucklew case is “the defining moment for the Supreme Court in terms of
cases that arise during death warrants,” Dunham said. He said the “emotional
callousness” of the decision was shocking to many. It wasn’t that the court
“recognized that executions may unintentionally be painful, it’s that it
appeared to accept that executions could be unnecessarily cruel,” he said.
But Kavanaugh’s concurrence seemed designed to “soften the blow” of the ruling,
Denno said.
Kavanaugh wrote to emphasize what he called the court’s “additional holding”
that alternative execution methods don’t need to be authorized under current
state law. It’s an issue that had been uncertain before Bucklew, he said.
It’s a point that “sort of got lost in the shuffle” and is “a pretty big bonus”
to capital litigators, Denno said.
Still, Kavanaugh and Roberts fell in line with their conservative colleagues
not just in cases like Bucklew but in another case later that month that laid
bare the liberals’ frustration.
Death row prisoner Christopher Price raised a similar claim to Bucklew’s and
the five conservatives overturned lower court stays in his favor, saying Price
also waited too long to bring his claim.
An impassioned dissent from Justice Stephen Breyer for the 4 liberals called
the majority out, leveling charges of arbitrariness and unfairness.
Breyer wrote that the majority acted in a way that “calls into question the
basic principles of fairness that should underlie our criminal justice system.
To proceed in this matter in the middle of the night without giving all Members
of the Court the opportunity for discussion tomorrow morning is, I believe,
unfortunate.”
Breyer’s discussion of the court’s internal procedures in his opinion was an
“unorthodox step,” Blackman said. It’s “a signal that the progressive Justices
are frustrated, and feel like they have no other choice.”
Meanwhile, capital defenders will continue the “recent trend of narrow, focused
challenges” to the death penalty, “with an eye to appeal to the Chief Justice
or Justice Kavanaugh,” Baich said.
Roberts peeled away in other death penalty cases this term as well, including
casting a tie-breaking vote for an elderly Alabama prisoner with dementia, and
for an intellectually disabled prisoner in Texas. Thomas, Alito, and Gorsuch
dissented in both cases.
(source: bloomberglaw.com)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
DeathPenalty@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman/options/deathpenalty
