Glossip, Grant, and Cole. Not Warner

Question 1: Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious.
Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze?
Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment?

Friday afternoon, the Supreme Court announced that it would hear Glossip v. Gross, a case out of Oklahoma brought by death row inmates Richard Glossip, John Grant, and Benjamin Cole, and answer those questions this term.

Glossip's on death row for the murder of Barry Van Treese. It's not that he actually killed Treese. Justin Sneed did that, beat Treese to death with a baseball bat. Sneed confessed to the killing and said that he did it 'cause Glossip promised him $10,000 if he'd do it. Sneed's sentenced to LWOP, death in prison. Glossip's sentenced to be killed. It's supposed to be done later this week, on Thursday.

Grant had served about 18 years of a 130 year sentence when he killed Gay Carter, a corrections worker, stabbed her to death with a shank. Then he tried to stab himself to death, but the corrections oficers stopped him. You know, it wasn't his call when he'd die. They'd get to decide when he was killed. As it stands now, Grant's killing is scheduled for next month, Feb. 19.

Cole killed his nine-month-old daughter, Brianna.  She was crying and making it tough for him to concentrate on the video games he was playing.  When she stopped crying, he went back to the games.  They plan to kill him March 5.

It's perhaps worth noting that when the petition for writ of certiorari was filed, Glossip wasn't the first named petitioner.  That honor went to Charles Warner.  On January 15, a week before the Court agreed to hear the case, it decided 5-4 (dissent by Sotomayor, joined by Ginsburg, Breyer, and Kagan, reproduced below) to let Oklahoma kill Warner.  Which it did that night.  

The ones in the robes haven't yet decided - at least they haven't gone public with a decision - whether to let Glossip or Grant or Cole be killed before ruling on their case.  It'd be unseemly.  Then again, they've done it before.  It was 1990, and James Smith was killed by Texas after 4 of the 9 in Washington had voted to hear his case but there wasn't a fifth vote to keep him alive long enough for that to happen.

Richard Glossip this week?  We'll see.

But while we wait, contemplate that third question the Court agreed to decide.  Will the state be allowed to torture an inmate to death, in violation of the Constitution, unless he can tell the how they can go about killing him properly?  Lower courts have regularly been saying the state can.  Damn, they gotta have some way of killing.  You want it to be constitutional, then give 'em a road map. Otherwise . . . .

Hey, you had a chance to convince us that you had a better way to be killed.  We can't help it, and won't help you, if you just dump it on us. 

Ohio, of course, is planning to keep everything secret.  It's pretty cool.  If they don't tell the guy how they're gonna kill him, then he can't really complain that they'll do it unconstitutionally.  And they've made it illegal to tell.  That's just moving into federal court here.

Welcome to 2015.  We've already killed four men this year:

• Andrew Brannan - Georgia
• Johnny Kormondy - Florida
• Charles Warner - Oklahoma
• Arnold Prieto - Texas

Will Glossip slow the parade for a few months?  We should begin getting an answer later this week.

  Warner Stay Dissent

"When he dies, I want it be because it's his time" - Another Voice

Charles Warner is supposed to be dead now.  The good people of Oklahoma planned to kill him at the end of April.  His was to be the second killing that night.  Right after they got done killing Clayton Lockett.

Except that it all went horribly wrong when they fucked up Lockett's murder and . . . well, Oklahoma hasn't managed to kill anyone since then.  

Of course, Lockett died anyhow, still on the table.  They said at the time it was a heart attack.  Then pathologists actually did an autopsy and damned if it wasn't the drugs after all.  Except they didn't go in his veins so his murder was slow and painful and lingering - even after they tried to stop it.   Torture, though we're not supposed to use that word for stuff we do in the spirit of good ol' American decency.  

But Warner?  They gave him a reprieve that night.  Still, he's out there, still waiting to be next up in the Sooner State.  And his turn's now just two months off.  January 15.  Fingers crossed and all to hope that it goes right. 

It was 17 years ago, when Charles Warner brutally raped and murdered Adrianna Waller.  She was 11 months old.  It's the sort of crime that, well, here's what Lou Keel said to KFOR-TV.  Keel's the guy who prosecuted Warner.  Twice.  Death sentences both times.

“This person doesn’t deserve to live,” said Keel. “If you’re going to have a death penalty, if there are going to be some crimes, some homicides, that are so atrocious then the rape and the brutal murder of a child has to qualify.”

On the other hand, there's Shonda Waller.  She's the mother of Adrianna.  She's not living in Oklahoma any more.  And she won't come back to see Warner be killed.  She doesn't want anyone to see it.  She doesn't want it to happen.

That would dishonor my daughter, it would dishonor me and everything I believe in … When he dies I want it to be because it’s his time, not because he’s been executed due to what happened to me and my child. I don’t want that on my hands. It makes me feel like I’m no different than him and I don’t want to feel that way.

She's not asking to have him released.  Not ever.  She wants him to rot in that cell.

“I don’t want to see him to be sentenced to death.” Waller said. “If they truly want to honor me then they will do away with the death penalty for him and they will give him life in prison without the possibility of parole because that’s the only thing that’s going to honor me.”
Waller is adamantly against the death penalty. She is a Christian and a victim of a vicious crime, and she believes God alone is the giver and taker of life.
“I can only see him spending the rest of his life in prison and dying in prison without him ever walking outside of those cell walls.” said Waller. “I don’t see any justice in just sentencing someone to die. To me, the justice is in someone living with what they have done to you to your family, and having to live with that the rest of their life knowing they will never get to walk out those doors.”

To honor the memory of Adrianna, to show how much they care about what was done to her, Oklahoma plans to kill her killer.

To honor the memory of Adrianna, to show her the respect she deserves, her mother wants her killer kept alive.

Adrianna "couldn't do anything to protect herself," Lou Keel says.  And so it's fitting, he figures, that 
Charles Warner shouldn't be able to protect himself, either.  

Stripe for stripe.
Lash for lash.
Flesh for flesh.

Really we ought to rape him first.

His family, Shonda Waller says, shouldn't suffer the way she has.

I wouldn't wish that on anybody.

Lou Keel, on the other hand.

There's a mad rush, these days, to make it a crime to hurt people's feelings.  Revenge porn. Bullying. Catcalls.  

As long, that is, as they want blood.

Shonda Waller doesn't want blood.  The murder of Charles Warner won't bring her peace.  It will shame her, offend her, dishonor her.  And dishonor the memory of her daughter.

Oklahoma, it hardly seems necessary to say, hasn't shown itself to be particularly sympathetic.  

"I have found the missing link between the higher ape and civilized man: It is we." - Konrad Lorenz

But Mousie, thou art no thy-lane,
In proving foresight may be vain:
The best laid schemes o’ Mice an’ Men
         Gang aft agley,
An’ lea’e us nought but grief an’ pain,
         For promis’d joy!

From Robert Burns, "To a Mouse" On Turning up in Her Nest with the Plow - November, 1785 

* * * * *

It's Oklahoma (wind sweeping down the plains, waving wheat that sure smells sweet, them belonging to the land) where they're really not doing so fine.

They've been having this problem.  They've been trying to kill Clayton Lockett and Charles Warner, but it's been a mess.  The two of them sued to learn what the drugs would be.  That led to a squabble between the Court of Criminal Appeals and the Supreme Court over who had a right to issue a stay while the litigation was going on.  Each court pointed to the other. 

Finally the Supreme Court issued a stay.  The governor said the court didn't have the authority and declared that he'd have them killed anyway.  (Can you spell Constitutional Crisis?)  She ordered a one week reprieve for Lockett to give the court a chance to see things her way.  Which they did, deciding that secret drugs were just fine and dissolving the stay. 

Which brought us to this evening.  Lockett's reprieve was till today and Warner's killing was scheduled for today.  So the Sooner State planned its first double execution since 1937 years.

Except.  You know, I didn't put that Robert Burns thing at the top of this for no reason.

Erik Eckholm in the Times.  

What was supposed to be the first of two executions here Tuesday night was halted when the prisoner, Clayton D. Lockett, began to twitch and gasp after he had already been declared unconscious and called out “man” and “something’s wrong,” according to witnesses.

Something was wrong indeed.

A doctor started to administer the first drug, a sedative intended to knock the man out, at 6:23. Ten minutes later, the doctor said that Mr. Lockett was unconscious, and started to administer the next two drugs, a paralytic and one intended to make the heart stop.
At that point, witnesses said, things began to go awry. Mr. Lockett’s body moved, his foot shook, and he mumbled, witnesses said.

At 6 :37, he tried to rise and exhaled loudly.

Yeah. 

 

Of course now, with things absolutely having gone south, a clear mess.  Grotesque.  They closed the curtain.  Witnesses only get to witness what the state wants them to see, after all.  But it was too late. They'd seen.  They'd heard.  They knew the bullshit.

From CNN.

Yet the office of Oklahoma Gov. Mary Fallin issued a statement indicating "execution officials said Lockett remained unconscious after the lethal injection drugs were administered."

Anyway, they threw in the towel.  Called off the effort to kill Lockett tonight.  Gave Warner a two week reprieve while they try to figure out how to make it prettier (and more successful) next time.

Rommell Broom in Ohio back in 2009.  Now Clayton Lockett. Two failed lethal injections. Lockett became the second man they couldn't kill by lethal injection. 

Broom's still in litigation over what should happen to him.  Lockett . . . . Well, he's cheated the hangman for good.  43 minutes after they started poisoning him, he had a heart attack and died.

I get tired, frankly, of writing the same thing.  It turns out that it just isn't that easy to kill people in socially acceptable ways.

Missouri's talking about bringing back the chair.  (Or maybe that's Arkansas.  Really, what difference does it make?)  Because there hasn't been a failed electrocution since the 40's, though there have been plenty that didn't go right.  And there is that thing about how people actually burn to death, their blood literally boiling inside their bodies.

Or maybe the gas chamber where people choke and gasp for minutes after minutes, sickening the witnesses.  Debbie Denno says that the firing squad is actually the surest and probably most humane, but we want death to be bloodless, neat, scientific.  Medicalized.

And so we do IV lines and drugs from compounding pharmacies and prison guards who aren't competent to do any of this, but then doctors aren't allowed to participate in executions - although Oklahoma actually had a doctor doing the whole thing press reports say, and you know how well that went.

We don't know what we're doing.  We can't do it right.  And it seems we don't give a rat's ass.

-------------------
And see Gideon

Meanwhile, in Oklahoma

So the Oklahoma Court of Criminal Appeals there stayed the next two executions (Clayton Lockett and Charles Warner) from later this month until late April.  Here's the docket entry from last Tuesday:

SERVICE COPY OF ORDER FILED IN COURT OF CRIMINAL APPEALS CASE #S D-2000-1330 AND D-2003-829 THIS DATE*************************ETC. APLNT LOCKETT'S EXECUTION DATE VACATED AND RESET FOR 4-22-14. APLNT WARNER'S EXECUTION DATE VACATED AND RESET FOR 4-29-14. PLNTFS' EMERGENCY APPL FOR STAY OF EXECUTION PENDING OUTCOME OF APPEAL DENIED AS MOOT.(COURT OF CRIMS MAILED TO ALL PARTIES)

The problem, of course, it that they'd run out of drugs.  That despite all the giggling.  Katie Fretland, in the Colorado Independent:

Oklahoma announced Monday that its covert deal to buy lethal injections fell through, highlighting a shadowy market for death penalty drugs and raising questions about protecting secret drug suppliers from public scrutiny. Records obtained by The Colorado Independent reveal a disturbing flippancy among high-level officials who have been involved with executions in Oklahoma.
In response to a request from Texas for advice on how to deal with the scarcity of the lethal injection drug sodium thiopental, records show that Oklahoma Assistant Attorney General Seth Branham quipped in a January 2011 email to a colleague that Oklahoma might cooperate in exchange for much sought-after 50-yard-line tickets to the Red River Rivalry, a football game between the University of Oklahoma and the University of Texas. In a reply, fellow Assistant Attorney General Stephen J. Krise joked that for Oklahoma’s assistance Texas’s team should intentionally lose several games.
“Looks like they waited until the last minute and now need help from those they refused to help earlier,” Krise wrote. “So, I propose we help if TX promises to take a dive in the OU-TX game for the next 4 years.”

That's pretty sophomoric gallows humor if you'll excuse the expression (and if you won't . . . not my problem), I suppose.  But hey, anyone can make bad jokes, and those are from e-mails where bad jokes are almost mandatory.  No, what I'm struck by in the Sooner State is the other news Fretland reports.

Convicts executed in Oklahoma have in some cases died from overdoses of pentobarbital or sodium thiopental, the anesthetic, rather than the second and third injections in the three-drug cocktail, according to documents obtained by The Independent. Records show executioners then injected the remaining two drugs into convicts’ dead bodies for what forms turned over in response to an open-records request refer to as “disposal purposes.”
Jerry Massie, the spokesman for the prison system, defended the practice, saying it follows state protocol.

OK (yeah, I know; live with it), it's macabre.  It's also deceptive, effectively covering up botched killings.

But Dr. Joe Cohen, a forensic pathologist, said injecting leftover drugs into dead bodies may distort postmortem toxicology results, thereby preventing the public from knowing what an inmate experienced during the execution.

This isn't about the secrecy issue - at least not directly.  Sure, like more and more states, Oklahoma is struggling, fighting litigation by the guys on the row, to keep secret just where and how it gets its drugs. You know, because even the killers don't want to be involved in the killing.  Or as the NRA doesn't quite say, 

Drugs don't kill people.  People kill people.

But then nobody pretends that Glock doesn't make Glocks, even ones that people use to kill other people.  But the execution drugs?  Who the hell knows?  And the obloquy.  If we're torn as a people over gun control (though probably not so much in Oklahoma), we're absolutely confounded over executions.  Good idea in the abstract, but kinda shameful in the concrete.  

Which is a digression from the point that Oklahoma disposes of the excess drugs in a nice safe way - by shooting them into the guy they've just killed.  Thereby masking just what they did.  Doesn't look so gruesome when you've covered up the gruesomeness.

And of course, that's the whole point of the process, of the clinicalization, the medicalization of killing. To make it look pretty.  Regardless.

Though sometimes, because we're so damned intent on the killing, some of the ugly truth comes through.  Viz, Dennis McGuire in January.  Per Alan Johnson in the Dispatch.

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.

Oh, I suppose there's a sense in which the execution wasn't botched.  I mean, McGuire ended up dead, unlike Rommell Broom whom Ohio couldn't manage to kill.  But McGuire's killing left a bad taste.  By revealing a truth. Which isn't supposed to happen. 

And which Oklahoma is trying damned hard to cover up.

But the secret's out.  

NumbersL 1338, 500, 2, 180

Of course, it's just a number.  You know, like 7 or 12 or 365 or 3.14159 or 714 or 56 or 511 or 186,000 or . . . .  And maybe you can figure out what those numbers all mean.  Because they're just numbers, too, though special ones.  Here are some others: 18, 21, 30, 50, 65, 100. That set has a certain resonance because they are a set that says something particular.

But others, like these two, well, they derive their meaning from context.

• 1,338
• 500

Here's the context.  Since executions resumed in this country with the January 1977 killing of Gary Gilmore in Utah, there have been 1,338 of them.  Last night it was Brian Davis in Oklahoma.  He was number 1,337.  This evening, Texas killed Kimberly Lagayle McCarthy.  The 13th woman executed in this era, number 1,338 overall.  And number 500 killed in Texas.  Which is, when you think even briefly about it, a hell of a lot of dead bodies.  No other state has killed more than 100 or so. 

So yeah, it's just a number.  But in its roundness, it maybe carries a bit of extra weight.  Maybe makes you stop and pause for a moment.  Not if you're Rick Perry, of course.  But maybe if you're wondering.

* * * * *

Now, the folks who think it's good that we're clearing up the backlog, killing off those folks who need killin', and generally being altogether responsible about it.  Maybe they should pause for a minute and consider Robert Bradley Miller of Oklahoma and Howard Michael Scheinberg of Florida.

No, they're not inmates on death row.  Never have been though some might suggest.

Miller and Scheinberg were prosecutors who tried cases that put people on death row.  No news there. Lots of prosecutors have done that.  That's how all those folks got on the row, after all.  But these two.

Let's start with Scheinberg.  He was engaged in the trial of Omar Loureiro.  On March 27, 2007, the jury returned a guilty verdict. On May 20, they said he should die.  Under Florida law, that's just a recommendation that the judge can accept or reject.  On August 24, then-Judge Ana Gardiner actually imposed a death sentence.  Ho hum.  That's what happens.  Except --

See, from March 23, that's 4 days before the jury came back with the guilty verdict, until August 24, Scheinberg and Gardiner were, how can I put this delicately?  Not quite sure.  Largely, that's because the Florida Supreme Court, ruling on the disciplinary case The Florida Bar v. Scheinberg is less than forthcoming.

I mean, I assume that Scheinberg and Gardiner were, as they don't actually say any more, canoodling, doing the nasty, making the beast with two backs, fucking their eyes out.  But I don't know that.  What I know is that during that 5 month period, 

Scheinberg has admitted that he and former Judge Gardiner exchanged 949 cell phone calls and 471 text messages.

They weren't about Loureiro's case or any other case.  They weren't about bar committees or legal stuff of any sort.  They were, as the court says several times, "personal."  And secret.  Can't forget secret.  As in they didn't tell Loureiro's lawyer that while his motions were being ruled on and while the judge was deciding what to do, the judge and the prosecutor were shagging each other comatose at the No Tell Mo-Tel exchanging hundreds and hundreds of text and phone messages.  Which could lead to what the court describes as 

an appearance of impropriety in the case.

To which one says, 

No shit.

Cause when the judge and prosecutor are bopping each other every chance they get (enough with the cutesiness of pretending we don't know - either they were fucking like bunnies or getting each other off over the phone or (probably) both; any other explanation is altogether implausible given the court's delicate failure to explain.

Loureiro got a new trial.  Scheinberg got his ticket yanked for 2 years.

* * * * *

And then there's Miller.  He was the prosecutor in the 1993 cases against Yancy Lyndell Douglas and Paris LaPriest Powell.  They were co-defendants, charged and tried, two years apart, for the killing of Shauna Farrow and the wounding of Derrick Smith.  Both sent to death row where they lost round of litigation after round of litigation until a federal judge stepped in and reversed the death sentence because of Miller's "'egregious conduct' as prosecutor."

Which led to investigation which led to ethics charges which led to the Oklahoma Supreme Court and State ex rel. Oklahoma Bar Association v. Miller.  And while they hated to do it, and said, in essence, 

it was OK to lie and cheat back 20 years ago, so we aren't going to be as harsh as we might be

they just felt constrained.  Since despite some verbal gymnastics, the court did find that Miller

• abused the subpoena process to force witnesses to cooperate;
• failed to disclose evidence to the defense; and
• obstructed defense access to evidence.

The Bar Association had found more misconduct.  And the Bar Association recommended that Miller lose his license for a year and pay something over $61,000 in costs. But he was, after all, a prosecutor.  (No, that's not really what the court said.  It said this happened a long time ago when ethics standards weren't particularly rigid [you know, because it was OK for prosecutors to lie and cheat and ab use their power and hide evidence in the 1990s], and Miller had never been caught before and he did cooperate.)  So 180 days and $12,000 plus.  Which is not as much, but not chopped liver, either, as my mother really might have said.

And there were the two dissenters.  Judge Taylor wrote, and Judge Watt joined in, a short and pithy dissenting opinion.

Whether it was "decades ago" or today, no attorney should ever commit the "reprehensible" conduct in death penalty (or any other) litigation as detailed in the Majority Opinion and Trial Panel Report. The actions of the Respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice. I agree with the recommendation of the Oklahoma Bar Association that the Respondent should be disbarred.

* * * * *

Which  brings me back to 500 and 1,338.

Here's what we know.  Prosecutors will lie and cheat and hide evidence to get convictions.  Especially where the stakes are high - and they're never higher than in death penalty cases.  And mostly, nearly always, they get away with it.  And it happened in Kimberly McCarthy's case.  And nobody much cared.

Hidden evidence is tough, because there's no obvious way to find it.  Misconduct of other sorts may be easier to find, but the legal question is always, "So what?"  Would it have changed the outcome in the case of this monster?  That's the way the courts ask it, since they've already concluded that the guy is guilty and doesn't deserve a break.

So most of the misconduct is ultimately whitewashed away.  And actual discipline of prosecutors for their misconduct is incredibly rare. Which is, of course, why they keep doing it.

* * * * *

About 25 years ago, a judge asked me if I was more in the "Due Process" or the "finality" side of criminal law.  You know, the cranky due process types all want the system to be fair.  

Getting the right guy?  Sure that matters.  But we're significantly the worse for it if we have to lie and cheat to do it.  The integrity of the system requires that the system act with integrity.  Which it all too often doesn't in these cases.

Something to think about as we think about those numbers.  And as we give some praise to Florida and a (grudging) Oklahoma.

So a rare nod to Oklahoma and Florida.