Ken Biros is scheduled to be murdered on Tuesday. The day before Thanksgiving, a panel of judges on the 6th Circuit largely ignored precedent and law and reached out to lift the stay to let the killing go forward. Yesterday, the entire 6th Circuit (well, except for Deborah Cook who didn't participate, but she'd have been on the side of the killers so her vote wouldn't have changed anything) voted to not to rehear that decision.
Judge Sutton wrote a gratuitous opinion explaining that Biros should be pleased because he's now getting a state-of-the-art execution (OK, that's not quite what Sutton wrote. What he actually said is that Ohio has now "improved" a "facially constitutional" system. And he adds that Biros will be killed by the method that Baze said the Constitution required.
Judge Moore takes issue with how badly the panel decision "directly contradicts binding precedent" and how Sutton (one of the judges on the panel) continues to ignore or misrepresent law, logic, and the record of the case
in an effort to achieve a particular outcome in the most perfunctory manner possible.
Finally, Judge Martin weighs in to excoriate Sutton (and Gibbons who joined his opinion here and was also on the panel with him) for prejudging a challenge to Ohio's new protocol.
On the whole, I would rather that we all went home today having only made a hash of our mootness jurisprudence rather than having made a hash of our mootness jurisprudence and having offered up views on an issue that is not currently, but soon will be, before us.And, of course, it will be before them very soon since Biros filed on Friday (sorry, I don't have a link to a free copy) an amended complaint challenging the constitutionality of the new protocol (and the competence of those who are to administer it).
Meanwhile, and lest there be any uncertaintly on where he stands when it comes to killing folk, Governor Ted denied clemency.
As I've wondered before, so I do again, What's the rush? It's not like Biros is going anywhere?