Taylor Motion

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MICHAEL ANTHONY TAYLOR, Plaintiff/Appellant, v.
GEORGE LOMBARDI, et al., Defendants/Appellees ) ) ) ) ) ) ) ) )
Case No. 14-1388 THIS IS A CAPITAL CASE Execution scheduled for 12:01 a.m., February 26, 2014
APPELLANTS MOTION FOR STAY OF EXECUTION AND PETITION FOR REHEARING AND REHEARING EN BANC CONCERNING STATES VIOLATIONS OF EQUAL PROTECTION AND DUE PROCESS BY EXECUTING PRISONERS DURING STAY PROCEEDINGS Introduction Rehearing is justified in this matter because the panels summary denial of a stay, which reflects the district courts erroneous order denying similar relief, conflicts with the Supreme Courts opinion in Hill v. McDonough, 547 U.S. 573 (2006). Hill recognizes the doctrine of equitable delay, but not when, as here, the prisoner could not have brought the claim without requiring a stay of execution in order for a court to resolve it. See id. at 584 (court must apply a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.). In this case, the State of Missouri carried out executions on November 20, 2013; December 11, 2013; and January 29, 2014, while stay remedies remained pending in the federal courts. Mr. Taylor and his fellow plaintiffs asserted their resulting equal protection and due process claims on December 3, 2013 (First
Appellate Case: 14-1388 Page: 1 Date Filed: 02/25/2014 Entry ID: 4127041
Amended Complaint, ECF Doc. 183), and again on January 27, 2014 (Second Amended Complaint, ECF Doc. 312). A trial is scheduled for June 2014. The Supreme Court of Missouri scheduled Mr. Taylors execution on January 24, 2014, or five days before the State executed Herbert Smulls during the pendency of stay proceedings in the United States Supreme Court. There is no possible sense in which Mr. Taylor could have brought is claims at such a time as to allow consideration of the merits without requiring entry of a stay. Hill, 547 U.S. at 594; accord Powell v. Thomas, 784 F. Supp. 2d 1270, 1278 (M.D. Ala. 2011) (no inexcusable delay even though prisoner could have filed this action several weeks ago, because a stay would have been required even if the prisoner had done so); Walker v. Epps, 287 Fed. Appx 371, 377-80 (5th Cir. 2008) (King, J., dissenting) (no inequitable delay where state was dilatory in responding to the prisoners lawsuit); Ringo v. Lombardi, No. 124209-CV-C-NKL, 2013 WL 6080358, at *6 (W.D. Mo. Nov. 19, 2013) (noting defendants dilatory conduct in this case: Hill was intended to be a shield to protect defendants from abusive litigation practices by death row inmates. But it was never intended to be used as a sword permitting defendants to disrupt and delay the litigation process and then complain that time is up.). This case also presents an issue of exceptional importance, which is whether the guarantees of due process and equal protection require a state to follow its own execution procedures even if the prisoner cannot (yet) prove that the states procedures are themselves cruel and unusual under the Eighth Amendment. The ii
panels ruling conflicts with opinions from the Sixth, Ninth, and Eleventh Circuits. See In re Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044, 1054 (S.D. Ohio 2012), affd, 671 F.3d 601 (6th Cir. 2012) (upholding stay of execution because state must follow its own procedures even if those procedures do not violate the Eighth Amendment); Towery v. Brewer, 672 F.3d 650, 659 (9th Cir. 2012) (declining to adopt the broad proposition that an equal protection violation requires a showing of cruel and unusual punishment, and finding no equal protection violation where the deviations from the written protocol did not risk the infliction of cruel and unusual punishment); Arthur v. Thomas, 674 F.3d 1257, 1263 (11th Cir. 2012) (significant deviation from protocol stated valid equal protection claim). The Missouri Department of Corrections has executed three prisoners in three months despite stay proceedings at all three levels of the federal judiciary. Aside from undermining the rule of law, the defendants conduct violates their own written procedures. Those procedures prohibit defendants from even removing the prisoner from his holding cell when legal activity is in process to prevent the execution. See Exhibit A (procedure at 11:15 p.m.). Defendants have serially violated a core aspect of their written protocol, leaving no assurance that the various plaintiffs in this case will be executed in a consistent and established manner, or that defendants consider themselves bound by their own procedures at all. See Cooey v. Kasich, 801 F. Supp. 2d 623, 652-59 (S.D. Ohio 2011) (deviation from core aspects of written protocol violated equal protection); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044, iii
1054-59 (S.D. Ohio 2012), affd, 671 F.3d 601 (6th Cir. 2012) (same). Mr. Taylor is entitled to a stay of execution because the defendants conduct offends the due process and equal protection guarantees of the Fourteenth Amendment. Moreover, the district courts order denying a stayand accordingly, the panels summary ruling to the same effectis plainly and distinctly erroneous in other respects: !It reasons that the allowance of judicial review is not a core aspect of the States execution protocol, even though the state adopted a written protocol at the district courts insistence in earlier litigation, and did so for the purpose of allowing pre-execution judicial review. Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035 (Doc. No. 195) at 5 & 7-9 (Order of June 26, 2006); Ringo v. Lombardi, 706 F. Supp. 2d 952, 962 (W.D. Mo. 2010) ([T]he Eighth Amendment requires protocols that include adequate safeguards against unnecessary pain, and superior courts have indicated that the involvement of medical professionals and rules for administration enhances such safeguards.). !It opines that it is unclear whether defendants conduct over the past three execution violates their written procedures, even though a stay does not require a clear showing of a constitutional violation, and even though the protocols language makes no provision whatsoever for the Director to authorize an execution to commence litigation is pending to stop it. 11:15 PM Director of the Department of Corrections/designee advises iv
(ERDCC Warden) that (Inmate Name) may be escorted to the execution room if no stay is in place and no legal activity is in process to prevent the execution. If there is pending legal activity to halt the execution process, (Inmate Name) will remain in his holding cell and there will be no IV or line established until authority is granted to do so by the Director of the Department of Corrections/designee. Exhibit A at 2-3 (emphasis added). If the Director had such authority during the pendency of stay proceedings, then there would be no purpose served by language allowing him to do so in the absence of such proceedings. Defendants reading of the provision makes most of its language pointless. !It reasons that Mr. Taylor unreasonably delayed his claim by filing it five days before his scheduled execution, noting that Mr. Taylor filed two other stay motions several days earlier. Setting aside the fact (a) that the underlying motion was filed earlier than parallel motions prior to the last three executions, (b) that the jurists whose authority has been flouted by the State over the last three executions have blamed the States conduct for carrying out those executions during stay remedies and not the prisoners conduct for filing them, (c) that the State did not even execute Herbert Smulls until five days after the Missouri Supreme Court scheduled Mr. Taylors execution date, and (d) that it is impossible for Mr. Taylor to have brought his claim at a time that it could be resolved without a stay of execution, the district courts premise does not remotely warrant its conclusion. Litigating under a death warrant is the most harrowing of lawyerly activities and circumstances, and it is
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precisely because of his other painstaking remedies that Mr. Taylor was unable to file the underlying motion before he did. Surely Mr. Taylor is not dilatory for preparing and filing some of his stay remedies earlier than others. Every day consists of only 24 hours, and counsel cannot magically complete and file all remedies at the same time. Mr. Taylor is entitled to a stay of execution, and the district court as well as the panel plainly erred by denying one.1
The panel consolidated four different motions into one opinion, and ordered that only one petition for rehearing could be filed. (Panel Opinion at 2.) Taylor focuses his petition for rehearing solely on the question whether the stay should be granted based on the States practice of executing individuals while stay requests are pending, but nothing should be read into this election. Indeed, most assuredly, Taylor contests the correctness of the panels decision on all four grounds, and believes that a petition for rehearing would be appropriate on all four. The Courts dismissal of the stay based on Rule 60(b) issue is particularly troubling, given that it was issued only moments after Taylors counsel received the suggestions in opposition and that he was not permitted to file a separate PFR. Moreover the district courts decision on that point was clearly wrong: The district court held that Mr. Taylor could not show Strickland prejudice from the ineffective assistance of the attorneys who persuaded him to plead guilty and forego jury sentencing in a capital case. It did so despite new evidence that the supervisor of those attorneys had fired one, and would have fired the other, if he had learned sooner, that they were working on multiple cases from other states to the detriment of their Missouri caseloads, including the petitioners. In so holding, the district court-like this Court in its 2003 opinion-relied on the findings of a state post-conviction relief judge whose order the Missouri Supreme Court had held to be a nullity. The district court has twice relied on this dicta to deny relief as more information has become available to the petitioner that undercuts the reliability of the state judges conclusions and the testimony before him. Thus, the district court improperly relied on a gratuitous finding beyond the scope of the appeal. vi
TABLE OF CONTENTS Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i I. Factual background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. The Department of Corrections executed plaintiff Joseph Franklin on November 20, 2013, even though viable stay proceedings were pending in the district court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Department of Corrections executed plaintiff Allen Nicklasson on December 11, 2013, even though viable stay proceedings were pending in the Eighth Circuit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Department of Corrections executed plaintiff Herbert Smulls on January 29, 2014, even though viable stay proceedings were pending in the Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Viable claims remained pending at the time of the last three executions because the courts had not resolved them, and not because of any deliberate strategy by plaintiffs counsel to ensure the pendency of stay motions throughout the period of an execution warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 The Department of Corrections written procedures prohibit an execution during the pendency of legal proceedings to stay it. . . . . . . 11
B.
C.
D.
E. II.
Defendants refusal to follow their own written execution procedures violates the Fourteenth Amendments guaranty of equal protection because it leaves the defendants free to vary their method in core respects from execution to execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. B. Equal protection requires reliable compliance with core aspects of the States written execution policies. . . . . . . . . . . . . . . . . . . . . . . . . 14 The allowance of judicial review is a core aspect of Missouris execution procedure, as evidenced by judicial outrage at the States practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 The district courts earlier order denying a stay to Allen Nicklasson materially strengthens Mr. Taylors entitlement to stay.. . . . . . . . . . . . 20 vii
C.
III.
Defendants conduct over the past three executions violates a state-created protection respecting the punishment of persons convicted of crime, and for this reason violates the Due Process Clause of the Fourteenth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 The district courts order and the panels summary ruling misapprehend the legal basis of Mr. Taylors claims and misapply the relevant considerations for granting a stay of execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 A. B. The allowance of judicial review is a core aspect of the states written execution procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Mr. Taylor need not show that Missouris execution method violates the Eighth Amendment in order show that the defendants are violating due process and equal protection by not following their established and written procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 The States Chronological Sequence of Execution unambiguously forbids the execution process from commencing when stay remedies are pending.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Mr. Taylor did not delay, unduly or otherwise, the preparation and filing of the underlying motion for stay. . . . . . . . . . . . . . . . . . . . . . . . . 29
IV.
C.
D.
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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I.
Factual background A. The Department of Corrections executed plaintiff Joseph Franklin on November 20, 2013, even though viable stay proceedings were pending in the district court.
On November 18, 2013, Mr. Franklin moved the district court for an order staying his execution. The motion attached documents showing recent changes that the defendants had not disclosed by supplementation of their discovery responses. It also included a supplemental declaration from Dr. Larry D. Sasich showing the flaws and unanswered questions in such late-disclosed or nearly undisclosed document from the defendants. ECF Doc. 157. At 4:19 p.m. on November 19, 2013, the court stayed Mr. Franklins execution. ECF Doc. 163. Mr. Franklin had sought the stay on four grounds; the court granted relief on one groundthe violation of the Eighth Amendment to the United States Constitutionand expressly refrained from reaching the remaining grounds: Because the Court finds that the stay of execution must be granted on the grounds that Plaintiffs have shown a substantial likelihood of success on the merits of their Eighth Amendment claim, the Court declines to discuss Plaintiffs other arguments on the merits at this time. Id. at 12. Defendants appealed the courts order to the Eighth Circuit. At 12:09 a.m. on November 20, 2013, the court vacated the stay. ECF Doc. 366-1. The Eighth Circuit thereafter denied Mr. Franklins petitions for rehearing and for rehearing en banc, over three dissenting votes, with three additional judges not participating in the
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decision. ECF Doc. 366-2. At 3:40 a.m. on November 20, 2013, counsel for Mr. Franklin then filed an application for stay in the U.S. Supreme Court. ECF Doc. 3663. At approximately 5:01 a.m. on November 20, 2013, while the United States Supreme Court proceedings were still pending, counsel for Mr. Franklin filed a renewed motion for stay on the basis of the grounds the district court had reserved ruling thirteen hours earlierexplaining that these grounds did not require the heightened evidence that the Eighth Circuit held to be missing from Mr. Franklins Eighth Amendment claim. ECF Docs. 167, 366-4. Opposing counsel received notice of this filing through the district courts electronic filing system at that time. ECF Doc. 366-4. Joseph W. Luby, counsel for Mr. Franklin, called the emergency number for the clerk of the district court at approximately 5:10 a.m. to insure that the court was alerted to the filing. At 5:18 a.m., counsel for Mr. Franklin and the Zink defendants received notice, via email, that the United States Supreme Court had denied the application for stay. ECF Doc. 366-5. At 5:24 a.m., November 20, 2013, Mr. Luby sent an email to defense counsel Susan D. Boresi, Michael J. Spillane, and Stephen D. Hawke, reminding them of the filing and stating his expectation that no execution would occur while it was pending: Dear Counsel: As you know, we have filed a renewed motion for stay of execution, asking the Court to consider the grounds that it declined to consider after finding that Mr. Franklin had sufficiently proven a viable Eighth Amendment 2
claim. I have contacted the emergency number [for] the U.S. District Court, and the clerk with whom I spoke is contacting Judge Laughrey to alert her of our motion. In the meantime, I expect you and your clients to refrain from executing Mr. Franklin while this matter remains pending. ECF Doc. 366-6. Mr. Luby never received any electronic notice that might have indicated that his email to defense counsel was not successfully delivered. And he has never received a response to this email. Despite the electronic notice of filing from the district court and the foregoing e-mail from appointed counsel, the defendants injected Mr. Franklin with some substance at 6:07 a.m. and pronounced him dead at 6:17 a.m. ECF Doc. 366-7. At that time, the motion that the plaintiffs had filed in the district court (ECF Doc. 167) remained pending. On November 20, 2013, after the defendants had executed Mr. Franklin, the district court denied his motion for stay as moot. ECF Doc. 170. B. The Department of Corrections executed plaintiff Allen Nicklasson on December 11, 2013, even though viable stay proceedings were pending in the Eighth Circuit.
On December 3, 2013, counsel filed a motion for a stay of Allen Nicklassons execution with the district court, citing some of the same facts set out above. ECF Docs. 184 at 4, 188 at 8-10. On Monday, December 9, 2013, the Eighth Circuit granted a stay to Mr. Nicklasson on the basis of a claim arising in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012). See Nicklasson v. Roper, Eighth Circuit Case No. 13-3091. The states attorneys sought rehearing en banc, which the Eighth Circuit denied on the evening of December 10, 2013, by vote of 8-2-1. Respondents counsel filed an
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application to vacate the stay in the Supreme Court. The Supreme Court vacated the Martinez-based stay at approximately 10:00 p.m. on December 11, 2013, by a vote of five to four. In the meantime, counsel for Nicklasson had already asserted his numerous bases for the district court to stay his execution on account of the Zink litigation. See ECF Doc. 184 (filed Dec. 3, 2013). The district court declined to rule on that motion because the Eighth Circuits stay remained in effect. ECF Doc. 194. Counsel for Mr. Nicklasson pressed the district court for a ruling in the event that the Supreme Court might vacate the Eighth Circuits stay. At 10:50 a.m. on December 11, counsel filed an emergency conditional motion for stay, urging the district court to rule the pending motion and explaining that opposing counsel refused to ensure that their clients would refrain from executing Mr. Nicklasson if a motion for stay remained pending in the event of an order from the Supreme Court vacating the Martinez stay. See ECF Doc. 195. Eighteen minutes later, the district court denied the motion. ECF Doc. 196. At 3:46 p.m., counsel filed a motion for stay in the Eighth Circuits Appeal No. 13-3664. At 3:55 p.m., counsel filed an emergency motion for conditional stay in the same appeal. Unfortunately for Mr. Nicklasson, the Eighth Circuit panel to which the motions were directed did not resolve them until after the Supreme Court issued its 10:00 p.m. order vacating the Martinez stay. At 10:11 p.m., the Eighth Circuit panel denied the stays Mr. Nicklasson had sought on appeal. ECF Doc. 366-8. At 10:31 4
p.m., counsel for Mr. Nicklasson moved the Eighth Circuit en banc for rehearing as well as for a stay of execution. ECF Doc. 366-9. According to MissouriNet: Attorney General Chris Koster informed the Department of Corrections at 10:43 p.m. that there were no legal impediments to the execution. ECF Doc. 366-10 (article from MISSOURINET). The next minute, the defendants injected Mr. Nicklasson with something, and at 10:52, they pronounced him dead. ECF Doc. 366-11(article from The Guardian). C. The Department of Corrections executed plaintiff Herbert Smulls on January 29, 2014, even though viable stay proceedings were pending in the Supreme Court.
In the case of Herbert Smulls, there were three actions in which counsel sought and, in some instances, received stays of execution. One concerned the ongoing grievance with the Eighth Circuits grant of an extraordinary writ to allow the respondents to avoid discovery in this case. A second raised Due Process Clause and First Amendment claims arising from the Zink litigation. A third involved a claim arising under Batson v. Kentucky, 476 U.S. 79 (1986), which counsel asserted in a motion to recall the mandate before the Missouri Supreme Court, and as to which counsel thereafter petitioned the United States Supreme Court for a writ of certiorari. On January 28, 2014, the United States Supreme Court entered a stay pending further order of the Court in Mr. Smullss Batson case. ECF Doc. 364-1. Later that day, a panel of the Eighth Circuit entered a stay pending the U.S. Supreme Courts determination of the petition for writ of certiorari in Zink v. Lombardi, concerning the 5
Eighth Circuits grant of mandamus relief in favor of the Zink defendants. ECF Doc. 364-2. The Eighth Circuit did not rule at that time on two other grounds (due process and First Amendment) presented in support of the request for stay. Id. Those grounds remained pending. The Eighth Circuit did not address them until January 29. At 4:34 p.m. on January 29, counsel for Mr. Smulls received notification that the Supreme Court had vacated its prior stay in Mr. Smullss Batson case, and had denied his application for stay (but not the petition for certiorari) in Zink. ECF Doc. 364-3. The order contained no ruling on the certiorari petition in Zink. At 6:28 p.m., the Zink defendants filed an application to vacate the Eighth Circuits grant of a stay of execution based on the pending Zink petition in the Supreme Court challenging the grant mandamus relief. Between 8:30 and 8:50 p.m. counsel for Mr. Smulls filed a motion for conditional stay in the Eighth Circuit and a renewed motion for stay, seeking the courts rulings on the unexhausted Due Process Clause and First Amendment claims that Mr. Smulls had presented in the January 28 application for stay. ECF Docs. 365-1. At 9:00 p.m., in preparation for the contingency that the U.S. Supreme Court might vacate the Eighth Circuits stay on the Zink mandamus grounds and that the Eighth Circuit might also deny his application for a stay on the separate Due Process Clause and First Amendment grounds, counsel for Mr. Smulls lodged a petition for writ of certiorari and application for stay based on Mr. Smullss due process and First Amendment claims. At that time, the petition and application were lodged with the 6
Supreme Court rather than filed because the Eighth Circuit had not yet ruled on those grounds. At 9:21 p.m. Mr. Danny Bickell, Deputy Clerk of the U.S. Supreme Court, notified counsel for Mr. Smulls by phone that the Court had vacated the Eighth Circuits stay, which was based solely on the pending petition for certiorari in Zink. What remained pending in the Eighth Circuit at that point were Mr. Smullss application for a stay of execution based on his claims under the Due Process Clause and the First Amendment. At 9:25 p.m., counsel for Mr. Smulls received the written order from the Supreme Court that they had just been orally apprised of regarding its decision to vacate the Eighth Circuits stay. At 9:40 p.m. counsel for Mr. Smulls, Lindsay J. Runnels, was on the phone with him. Guards came and seized him. When she immediately called back, they picked up the phone but hung up as soon as she identified herself. It was apparent at that point that the defendants privies had moved Mr. Smulls to the execution chamber. At that point, the Eighth Circuit was considering the motion for a stay based on the due process and First Amendment claims, and the Supreme Court was reviewing the lodged petition and stay application. At 9:59 p.m., counsel for Mr. Smulls received oral notification from Michael E. Gans, Clerk of the Eighth Circuit, that the court had denied the renewed motion for stay and motion for conditional stay by a vote of two to one, with Judge Bye dissenting. With counsel having already lodged with the Supreme Court a stay 7
application and petition for writ of certiorari based on these claims, those remedies were now ripe for ruling. At 10:07 p.m. counsel for Mr. Smulls received the written order from the Eighth Circuit of which the clerk had orally notified them eight minutes earlier. This transmission contained Judge Byes three-page dissenting opinion on the due process claim. Counsel for Mr. Smulls then submitted that opinion to the Supreme Court in further support of his application for stay and petition for writ of certiorari. ECF Doc. 364-4. At 10:11 p.m., Mr. Smullss Due Process and First Amendment petition and application were pending in the Supreme Courtsupplemented by Judge Byes vigorous dissenting opinion. At that very time, the defendants began the execution, starting the administration of a lethal drug. Counsel for Mr. Smulls did not find out the timing until later, through press reports. While they proceeded to kill Mr. Smulls, the defendants kept his counsel completely in the dark as they were awaiting the Supreme Courts ruling. At 10:20 p.m. Mr. Smulls was pronounced dead. Not until 10:24 p.m. did the U.S. Supreme Court deny Mr. Smullss petition for certiorari and application for stay. ECF Doc. 364-5. Throughout the evening, counsel for Mr. Smulls, Cheryl A. Pilate, had sent a series of e-mails to defense counsel, apprising them of the status of filings on behalf of Mr. Smulls and the courts decisions. ECF Doc. 364-6. At no point, until 10:24 p.m., was Mr. Smulls without either a stay or a pending application for stay.
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D.
Viable claims remained pending at the time of the last three executions because the courts had not resolved them, and not because of any deliberate strategy by plaintiffs counsel to ensure the pendency of stay motions throughout the period of an execution warrant.
Seeking to justify the Department of Corrections conduct, opposing counsel recently testified before a Missouri legislative committee that the prisoners attorneys pursue a very deliberate strategy to ensure there is always a stay motion pending during the course of a death warrant, which is a de facto repeal of the death penalty. Counsel suggested that stay proceedings were pending during the last three executions only because the still-pending motions were sprung on the courts and the State at the eleventh hour. But the circumstances of each case disprove counsels characterization of them. In the Franklin case, counsel filed a renewed motion for stay in the district court after the court left unresolved promising claims that do not require the same evidence that Mr. Franklin was held to have lacked. It was no fault of Mr. Franklins attorneysand certainly not their deliberate strategythat Judge Laughrey would grant a stay on Mr. Franklins most demanding claim while leaving the other grounds unresolved. And it was entirely reasonable for counsel to seek a ruling on those unresolved grounds. Likewise, in the Nicklasson case, the Eighth Circuit panel did not rule on the Zink-based motion for stay until 10:11 p.m. on the date of the warrant, or some ten minutes after the Supreme Court vacated the Eighth Circuits stay on Mr. 9
Nicklassons Martinez litigation that challenged his underlying conviction and sentence. Counsel for Mr. Nicklasson simply took the next logical step after the Eighth Circuits adverse ruling: they immediately moved the full Eighth Circuit for a stay of execution and rehearing en banc, advancing the same grounds that had been filed in the district court eight days earlier. That motion was filed at 10:31 p.m., but the State began executing Mr. Nicklasson at about 10:43 p.m., after the Attorney General informed the DOC that there were no legal impediments to the execution. Neither did counsel for Mr. Smulls spring a last-minute surprise on the State or the courts. Counsel were simply seeking a ruling on remedies that had been pending before the Eighth Circuit for more than 24 hours, and which had been presented to the district court days earlier. The conditional and renewed motion for stay asked the Eighth Circuit for relief on two grounds that remained unresolved. The State was well aware of these grounds, and indeed, it had earlier filed (at 2:42 p.m. on January 29) a motion asking the Eighth Circuit to expedite its ruling on the two unresolved claims. That ruling finally came at 10:07 p.m., with the Eighth Circuit denying a stay despite Judge Byes vigorous three-page dissent in support of the due process claim. The underlying stay theories had already been lodged with the Supreme Court in anticipation of the Eighth Circuits ruling, and the issues became ripe for the Supreme Court as soon as the Eighth Circuit had resolved them at 10:07 p.m. The State nevertheless began injecting Mr. Smulls with a lethal chemical at 10:11 p.m., and pronounced him dead at 10:20 p.m. Four minutes later, the Supreme Court sent word 10
that it had denied Mr. Smulls motion for stay. E. The Department of Corrections written procedures prohibit an execution during the pendency of legal proceedings to stay it.
However else one might characterize the defendants actions, they violate the States own execution procedures, which forbid the defendants from even escorting the prisoner from the holding cell to the execution chamber if there is pending legal activity to halt the execution: 11:15 PM Director of the Department of Corrections/designee advises (ERDCC Warden) that (Inmate Name) may be escorted to the execution room if no stay is in place and no legal activity is in process to prevent the execution. If there is pending legal activity to halt the execution process, (Inmate Name) will remain in his holding cell and there will be no IV or line established until authority is granted to do so by the Director of the Department of Corrections/designee.
See ECF Doc. 184-17(Chronological Sequence of Execution), at 2-3; ECF Doc. 364-7 (attached hereto as Exhibit A).2 The same procedures permit an execution to go forward only when the Attorney General or his representative certifies that there are no legal impediments or other reasons that the execution should not proceed: at 1200 a.m., the Director of the Department of Corrections asks the Attorney General, Are there any legal impediments or reasons why the lawful execution of (Inmate Name) should not proceed? Id. at 4. Document 184-17 was furnished by Defendants during the Ringo litigation. Defendants have not provided any updated documents to suggest that the relevant portions of the Chronological Sequence of Execution have been amended, and have never argued that they have been so amended. 11
2
Defendants insist that the written procedures allow the Director to authorize an execution when stay proceedings are pending. See ECF Doc. 354, at 22-23. But that argument is implausible, because the rules very language provide for the Director to advise the Warden to escort the prisoner out of the holding cell only when no stay is in place and no legal activity is in process to prevent the execution. (emphases added). For that matter, the district court has already rejected the defendants reading of the procedures. In the course of denying a stay to Allen Nicklasson, the district court agreed that the defendants had violated their own procedures by prematurely executing Joseph Franklin; the district court simply believed that the defendants were unlikely to violate their own rules again: Because Defendants have violated a portion of their protocol on one occasion does not mean Defendants are likely to do it again. Mr. Nicklasson has provided nothing more than speculation that at some point in the future, a condemned prisoner may be executed in a manner different than another prisoner. Without more, proof of Defendants one time violation is not sufficient to create a significant likelihood of success on his equal protection claim. ECF Doc. 196 at 10. Defendants also argue that no prisoner could ever be executed if they were obligated to follow the protocol as written, because counsel could simply file stay application after stay application until the twenty-four hours of the execution warrant expired. ECF Doc. 354 at 23. That assertion ignores the merits of the filings made on behalf of Messrs. Franklin, Nicklasson, and Smulls, as well as the requirement that any federal filing must be made in good faith and not to cause unnecessary delay. See 12
Fed. R. Civ. P. 11(b)(1). Defendants have never suggested that any of the grounds were frivolous. Indeed, Franklins grounds involved claims that were easier to satisfy than the Eighth Amendment claim on which the district court granted a stay, and Nicklassons and Smulls claims were both supported by the dissenting views of multiple Eighth Circuit judges. If the defendants had reason to believe that bad-faith pleadings were being filed, they ought to have sought relief under Rule 11 rather than evading the courts power and duty to say what the law is. Defendants instead divested the reviewing courts of jurisdiction by deciding for themselves that the prisoners claims were unavailing. II. Defendants refusal to follow their own written execution procedures violates the Fourteenth Amendments guaranty of equal protection because it leaves the defendants free to vary their method in core respects from execution to execution. Defendants do not consider themselves bound by their own execution protocol. Therefore, Plaintiffs lack any assurance that otherwise similarly situated will be executed through established and consistent procedures, or that the States written policies will be followed at all. The States willingness to engage in core deviations from its own execution protocol burdens each prisoners right to equal protection and to be free of cruel and unusual punishment, but without serving any legitimate governmental interest. Cooey v. Kasich, 801 F. Supp. 2d 623, 652-59 (S.D. Ohio 2011) (deviation from core aspects of written protocol violated equal protection); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044, 1054-59 (S.D. Ohio 2012) (same),
13
affd, 671 F.3d 601 (6th Cir. 2012). These defects burden each prisoners fundamental rights. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (due process recognizes liberty interest in states compliance with state law); Ringo v. Lombardi, 706 F. Supp. 2d 952, 962 (W.D. Mo. 2010) (Eighth Amendment requires execution protocols that include adequate safeguards against unnecessary pain); Bush v. Gore, 531 U.S. 98, 109 (2000) (criticizing court-ordered statewide remedy that failed to ensure uniformity of voting rights from county to county; statewide remedy requires at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied). A. Equal protection requires reliable compliance with core aspects of the States written execution policies.
The purpose of the equal protection clause is to secure every person within the States jurisdiction against intentional and arbitrary differential treatment, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923). The Equal Protection Clause embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly. Vacco v. Quill, 521 U.S. 793, 799 (1997). The states cannot make distinctions which either burden a fundamental right (with or without violating that right), target a suspect class, or intentionally treat one person differently from others similarly situated without any rational basis for the difference.
14
Id.; Village of Willowbrook, 528 U.S. at 564. When an equal protection claim implicates a burden on the fundamental rights of a group of persons, the state action involved is subjected to strict judicial scrutiny. Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976); Gavin v. Branstad, 122 F.3d 1081, 1089 (8th Cir. 1997). State action fails such scrutiny unless it is necessary to achieve a compelling governmental interest and is narrowly tailored to do so. See Citizens United v. FEC, 558 U.S. 310, 340 (2010); Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Equal protection is implicated by a states policy and practice of deviating from core aspects of its written and established execution policies, which exist to protect the prisoners interest in avoiding an execution that constitutes cruel and unusual punishment. See Baze v. Rees, 553 U.S. 35, 56 (2008) (concluding that, on the record evidence, petitioners had not demonstrated substantial risks of serious pain [i]n light of these safeguards that Kentucky follows); Ringo, 706 F. Supp. 2d at 962 (noting that the Eighth Amendment requires protocols that include adequate safeguards against unnecessary pain). What this means is that any core deviation from the protocol is permissible only if it is narrowly tailored to a compelling governmental interest. In re Ohio Execution Protocol Litig., 840 F. Supp. 2d at 1054. Defendants cannot make such a showing, because executions without observance of prescribed safeguards serve no legitimate interest: Plaintiff has demonstrated that the only rationale for core deviations that eliminate safeguards and introduce greater uncertainty into the execution process is to simply complete the executions at all or 15
nearly all costs. Cooey, 801 F. Supp. 2d at 653. Mr. Taylor and each other plaintiff will also prevail under a class of one theory of equal protection, under which a state is forbidden from treating one individual differently from other similarly situated individuals unless the state has a rational basis for doing so. Village of Willowbrook, 528 U.S. at 564. The class of one theory presupposes that like individuals should be treated alike, and that to treat them differently is to classify them in a way that must survive at least rationality review. Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 605 (2008). To measure such disparate treatment, a claim generally requires the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed. Id. at 602. Under this theory, Mr. Taylor can show that Defendants non-compliance with their written policies arbitrarily or intentionally treats each condemned inmate differently and that such disparate treatment serves no legitimate state interest. See In re Ohio Execution Protocol Litig., 840 F. Supp. 2d at 1054-59; Cooey, 801 F. Supp. 2d at 652-59. From all appearances, the defendants actions in executing Messrs. Franklin, Nicklasson, and Smulls, and deviating from their written execution policies, were intentional, and were not based on any individualized concerns about the condemned inmate, but rather on interests of administrative convenience. But that interest does not justify disparate treatment of similarly situated individuals. See Rinaldi v. Yeager, 384 U.S. 305, 310 (1966); Frazier v. Manson, 703 F.2d 30, 35 (2d Cir. 1983). When the 16
defendants actions are unrelated to the achievement of any combination of legitimate purposes, a court can only conclude that those actions are irrational. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d at 1054. B. The allowance of judicial review is a core aspect of Missouris execution procedure, as evidenced by judicial outrage at the States practices.
Defendants dispute that they have a core principle of refraining from executions when judicial remedies are pending. ECF Doc. 354 at 22. But the fact that defendants do not like a provision of their own protocol, and wish it did not mean what it says, does not mean that it is not a core principle. As an abstract matter, of course, the availability of judicial review is key to ensuring that executions are humane. See Ringo v. Lombardi, 706 F. Supp. 2d 952, 962 (W.D. Mo. 2010) ([T]he Eighth Amendment requires protocols that include adequate safeguards against unnecessary pain, and superior courts have indicated that the involvement of medical professionals and rules for administration enhances such safeguards.). Allowance of court review is indeed a core principleof the states policy. Since these particular provisions affect both the actions of the state in the execution process and the prisoners access to the courts, its importance is clear. Counsel for Messrs. Franklin, Nicklasson, and Smulls acted in reliance on opposing counsels good faith when they notified them of pending stay remedies and the courts efforts to resolve them. Counsel for defendants simply ignored these entreaties and the motions they 17
described. Mr. Taylor should not suffer the same fate. Lest there be any doubt on the importance of judicial review, the courts have made known their displeasure with the States conduct. On December 28, 2013, Judge Laughrey disclosed to two of plaintiffs counsel the identities of defendants compounding pharmacy and laboratory. ECF Doc. 242. Judge Laughrey later vacated that order, recognizing that she issued it without knowing that the Eight Circuit had stayed her discovery rulings the previous evening. ECF Doc. 244. But the facts that were otherwise described by Judge Laughrey remain true. On the one hand, defense counsel twice refused to comply with the courts discovery orders when their motions to stay those orders were pending. On the other, defendants had by then carried out two executions while the prisoners motions for stay were pending. In effect, defendants had appointed themselves as their own judges: Defendants seem to think that they are able to decide for themselves when it is appropriate to comply with an order of a court and when it is not when they can proceed in the face of pending litigation and when they need not be concerned about pending litigation. ECF Doc. 242 at 2. Eighth Circuit Judge Kermit Bye was even more outspoken in his criticism. He was alarmed that defendants executed Allen Nicklasson before the Eighth Circuit could determine Mr. Nicklassons motion for stay and petition for rehearing en banc: At approximately 10:52 p.m. on December 11, 2013, Missouri executed Allen Nicklasson before this court had completed its review of Nicklassons request for a stay of his execution, a request he brought in a pending action challenging the constitutionality of Missouris execution 18
protocol. That bears repeating. Missouri put Nicklasson to death before the federal courts had a final say on whether doing so violated the federal constitution. Nicklasson v. Lombardi, Case No. 13-3664, Amended Order dated Dec. 23, 2013, at 2 (Bye, J., dissenting), attached as Exhibit B. Judge Bye reasoned that Mr. Nicklasson was entitled under Hill v. McDonough, 547 U.S. 573 (2006), for his claim to be decided by the federal courts rather than by defendants: I am alarmed that Missouri proceeded with its execution of Allen Nicklasson before this court had even finished voting on Nicklassons request for a stay. In my near fourteen years on the bench, this is the first time I can recall this happening ... While the current protocol litigation is not among the category of cases for which Nicklasson was entitled to an automatic stay of his execution, it was nonetheless a claim that Missouri would violate the federal constitution by executing him. As a result, Nicklasson was entitled to have this court complete its equitable review under Hill to determine whether he was entitled to a stay before Missouri actually executed him. Eighth Circuit Chief Judge William J. Riley expressed similar views the other week. While entertaining oral argument in an unrelated capital habeas case, Chief Judge Riley stated as follows: I might just tell you this. Ill probably regret saying this later, but I think it was the execution of Nicklasson, but the State of Missouri executed somebody which they probably had the right to do, right in the middle of our petition for rehearing voting. And I just wanted you to take back the word that ... some of the members of the Court did not appreciate that. That we were right in the middle of that .... And I think you have probably heard that some people have written on it. But we were moving as fast as we can and, as Chief Judge, I was pushing to get everything done in time. But I think you need to be a little more patient.
19
See Oral Argument in Forrest v. Steele, Eighth Circuit Case No. 12-2888, at 44:55 through 45:40 (available online at http://8cc-www.ca8.uscourts.gov/OAaudio/2014/2/122888.mp3). The issue here, of course, is not whether the State has an abstract right to execute a prisoner when a stay motion is pending. It is whether the States own provision to stay its hand in the face of such a motion is a core provision of its execution procedures. And it plainly is, because state officials are not a court. It is emphatically the province and duty of the judicial department to say what the law is. Marbury v. Madison, 1 Cranch 137, 177 (1803). C. The district courts earlier order denying a stay to Allen Nicklasson materially strengthens Mr. Taylors entitlement to stay.
Although the district court declined to issue a stay of execution to Mr. Nicklasson, its reasoning strongly supports a stay for Mr. Taylor. The district court both (a) rejected the defendants argument that the protocol allows an execution whenever the Director says so, and (b) ruled that Mr. Nicklassons claim was speculative because the defendants had violated their written procedures in only the single case of Joseph Franklin. Because Defendants have violated a portion of their protocol on one occasion does not mean Defendants are likely to do it again. Mr. Nicklasson has provided nothing more than speculation that at some point in the future, a condemned prisoner may be executed in a manner different than another prisoner. Without more, proof of Defendants one time violation is not sufficient to create a significant likelihood of success on his equal protection claim. 20
ECF Doc. 196 at 10 (emphasis added). But no one is speculating now. The defendants have since executed two more prisoners before the federal courts had a final say on whether doing so violated the federal constitution. Nicklasson v. Lombardi, Eighth Circuit Case No. 13-3664, Amended Order dated Dec. 23, 2013, at 2 (Bye, J., dissenting); Exhibit B at 2. The State had thumbed its nose at all three levels of the federal judiciary over the course of three executions in three months, and all in violation of its own written procedures. Defendants misconduct equals or exceeds that of their Ohio counterparts: [T]he only rationale for core deviations that eliminate safeguards and introduce greater uncertainty into the execution process is to simply complete the executions at all or nearly all costs. Cooey, 801 F. Supp. 2d at 653. III. Defendants conduct over the past three executions violates a statecreated protection respecting the punishment of persons convicted of crime, and for this reason violates the Due Process Clause of the Fourteenth Amendment. In Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), the Supreme Court of the United States held that when a states statutes provided for jury sentencing of the petitioner before them, and the state courts did not enforce this procedural guaranty in his favor when he was on trial for a crime, the failure to do so violated the Due Process Clause of the Fourteenth Amendment. See also Toney v. Gammon, 79 F.3d 693, 699 (8th Cir. 1996); Wilkins v. Bowersox, 933 F.Supp. 1496, 1525-26 (W.D. Mo. 1996), affd, 145 F.3d 1006 (8th Cir. 1998).
21
The district court required the defendants privies to adopt a written protocolwhich they had not beforefor the very purpose of affording judicial review of execution practices before-the-fact. Taylor v. Crawford, No. 05-4173-CV-CFJG, 2006 WL 1779035 (Doc. No. 195) at 5 & 7-9 (Order of June 26, 2006). The protocols provisions for not proceeding with an execution while judicial review is in progress is a straightforward protection of persons convicted of crime in respect to punishment. The right not to be killed at the very moment that a court of competent jurisdiction is considering the specific method is a state-created, federally protected liberty interest. Defendants could have left this provision out when the district court ordered them to create the protocol. The fact that it is a part of the protocol is why they maintain that its current version is confidential under the state statute, Mo. Rev. Stat. 546.720.2-.4, and why they have attempted to protect themselves from discovery and from legislative and professional oversight. It is the height of arbitrariness to defend a lawsuit by killing the plaintiffs one by one, especially when the courts have not resolved the questions placed before them. Citing Hill v. McDonough, 547 U.S. 573, 583-84 (2006), defense counsel and the Attorney General argue that the mere presence of litigation does not entitle a prisoner to a stay of execution. That is indeed what Hill and other authorities say, but it does not excuse the States conduct. The issue is not whether and when a federal court might grant a stay. It is whether the State should refrain from executing the prisoner so that the court can decide whether to issue a stay in light of the particular litigation 22
before it. This simple distinction is not lost on the judiciary: While the current protocol litigation is not among the category of cases for which Nicklasson was entitled to an automatic stay of his execution, it was nonetheless a claim that Missouri would violate the federal constitution by executing him. Nicklasson v. Lombardi, Case No. 13-3664, Order of Dec. 23, 2013, at 14 (Bye, J., dissenting from the denial of rehearing); Exhibit B at 14. Not content to let the courts decide the constitutional issue presented, the States pattern is to resolve the prisoners claim for itself by executing the claimant. That is the basis of Judge Byes outrage at the defendants conduct: Nicklasson was entitled to have this court complete its equitable review under Hill to determine whether he was entitled to a stay before Missouri executed him. Id. at 14-15. Fundamental to the rule of law is the principle that, [W]here there is a legal right, there is also a legal remedy by suit or action at law. Marbury v. Madison, 1 Cranch 137, 163 (1803), quoting William Blackstone, Commentaries on the Laws of England (1769). The State is free to contest a claim of legal right. But that does not make it proper for the State to extinguish the claim by means of self-help.
23
IV.
The district courts order and the panels summary ruling misapprehend the legal basis of Mr. Taylors claims and misapply the relevant considerations for granting a stay of execution. The district court denied a stay of execution on the morning of February 24,
2014. Exhibit C; ECF Doc. 370. But the courts order is replete with errors that infect all aspects of its reasoning. A. The allowance of judicial review is a core aspect of the states written execution procedures. On the merits of the claims, the district court reasoned that the protocol provision at issue here is not analogous to provisions that involve the preparation or administration of execution drugs. ECF Doc. 370 (Exhibit C), at 3. The court observed that Mr. Taylor has not presented any authority to suggest that the procedure in question is a core aspect of an execution procedure. Id. Of course, it is impossible to cite other precedent for a states repeated failure to allow judicial review before killing prisoners, because the events described here are a uniquely Missourian phenomenon. Counsels research has revealed NO other jurisdiction that routinely executes prisoners before the courts have resolved and rejected their claims. See Exhibit D (Letter from Prof. James Liebman), at 2 (I am aware of no other state that follows this controversial practice.).3 For that matter, Missouris Department of Corrections enacted its protocol, including the still-effective Chronological Sequence of Execution at the specific Professor Liebman authors the leading treatise on habeas corpus. See Hertz & Liebman, Habeas Corpus Practice & Procedure (6th ed. 2011). 24
3
order and insistence of the district court in earlier litigation, and for the specific purpose of allowing judicial review of the States execution methods. See Taylor v. Crawford, No. 2:05-4173-CV-C-FJG, 2006 WL 1779035 at 7-8 (W.D. Mo. June 26, 2006). The purpose of that Order was to make possible the very before-the-fact judicial review the defendants now seek to avoid. The Eighth Circuit relied on the protocol to approve the means of lethal injection with FDA-compliant pharmaceuticals. Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007). Those safeguards are meaningless without the availability of judicial review to enforce them. See Ringo v. Lombardi, 706 F. Supp. 2d 952, 962 (W.D. Mo. 2010) ([T]he Eighth Amendment requires protocols that include adequate safeguards against unnecessary pain, and superior courts have indicated that the involvement of medical professionals and rules for administration enhances such safeguards.). B. Mr. Taylor need not show that Missouris execution method violates the Eighth Amendment in order show that the defendants are violating due process and equal protection by not following their established and written procedures. The district court next reasoned that Mr. Taylor has not shown a violation of a fundamental right because he has not shown that the defendants execution method violates the Eighth Amendment. ECF Doc. 370 at 3-4; Exhibit C at 3-4 (emphasis added). But Mr. Taylors claims require no such thing. The equal protection claim is viable not because the defendants are, or are not, violating the Eighth Amendment, but rather, because they are violating core safeguards in a
25
manner that burdens and threatens their constitutional rights, including those protected by the Eighth Amendment. See Cooey v. Kasich, 801 F. Supp. 2d 623, 652-59 (S.D. Ohio 2011) (deviation from core aspects of written protocol violated equal protection); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044, 1054-59 (S.D. Ohio 2012), affd, 671 F.3d 601 (6th Cir. 2012). The Ohio litigation makes this point abundantly clear, and the authorities specifically reject the district courts reasoning: Defendants attempt to transform Plaintiffs Fourteenth Amendment claim into a pure Eighth Amendment claim. But the former claim sufficiently targets that the sweeping core deviations at least burden Plaintiffs fundamental right by negating some of the precise procedural safeguards that this Court and the Sixth Circuit heralded in prior discussions of Eighth Amendment claims in this same litigation. Cooey, 801 F. Supp. 2d at 653 (emphases in original); Cooey v. Kasich, Nos. Nos. 2:04cv1156, 2:09cv242, 2:09cv823, 2:10cv27, 2011 WL 5326141, at *4 (S.D. Ohio Nov. 4, 2011); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d at 1054. The Sixth Circuit affirmed a stay of execution on this basis, ruling that the State must abide by its own procedures: We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted. In re Ohio Execution Protocol Litig., 671 F.3d 601, 602 (6th Cir. 2012). The Ninth Circuit agrees. The Court refused to adopt the broad proposition that an equal protection claim requires an Eighth Amendment violation in order for the protocol-deviation to burden the prisoners Eighth Amendment rights. Towery v.
26
Brewer, 672 F.3d 650, 659 (9th Cir. 2012). Rather, the question is whether the deviation in question is one that tends to risk the infliction of cruel and unusual punishment. Id. Mr. Taylor has already explained that the absence of reliable judicial review creates such a risk; protocols offer no protection without a court available to enforce the states adherence. Ringo v. Lombardi, 706 F. Supp. 2d 952, 962 (W.D. Mo. 2010) ([T]he Eighth Amendment requires protocols that include adequate safeguards against unnecessary pain, and superior courts have indicated that the involvement of medical professionals and rules for administration enhances such safeguards.) The obligation of adherence extends beyond the Equal Protection Clause. Mr. Taylor has explained above that the State violates due process by violating its own written procedure that it adopted at the district courts insistence. See Part III, above. Due process additionally guarantees a prisoners access to the courts. Lewis v. Casey, 518 U.S. 343, 351 (1996); Bounds v. Smith, 430 U.S. 817, 825 (1977). That right is meaningless if the State is free to execute the prisoner before his claims are resolved. Defendants conduct is thoroughly illegitimate. See Exhibit D at 3 (Letter from Prof. James Liebman) (motion for stay should be resolved, not unilaterally by one party to the dispute, but by the decision of a neutral court of law). C. The States Chronological Sequence of Execution unambiguously forbids the execution process from commencing when stay remedies are pending. The district court reasoned that it was unclear whether the defendants conduct over the last three executions violates their written procedures. Exhibit C at 27
4; ECF Doc. 370 at 4. Of course, a stay does not require Mr. Taylor to show a clear and unambiguous entitlement to relief, but only a significant possibility of success on the merits. Hill v. McDonough, 547 U.S. 573, 584 (2006). In any event, there is no merit to the defendants argument that an execution may proceed whenever the Director authorizes it. The full provision for 11:15 p.m. reads as follows: 11:15 PM Director of the Department of Corrections/designee advises (ERDCC Warden) that (Inmate Name) may be escorted to the execution room if no stay is in place and no legal activity is in process to prevent the execution. If there is pending legal activity to halt the execution process, (Inmate Name) will remain in his holding cell and there will be no IV or line established until authority is granted to do so by the Director of the Department of Corrections/designee. Exhibit A at 2-3. Defendants seize on the last clause, suggesting that the Director is free to authorize an execution by granting the authority to do so. ECF Doc. 367 at 5. But the directive expressly cabins the Directors power to give that authorization: the Director has that authority when no stay is in place and no legal activity is in process to prevent the execution. If the Director had such authority during the pendency of stay proceedings, then there would be no purpose served by language allowing him to do so in the absence of such proceedings. Defendants reading of the provision makes most of its language pointless. For that matter, an earlier order of the district court already rejects Defendants strained reading of the policy. When opposing Allen Nicklassons motion for stay, the defendants made the same argument in that case that they made in this one. ECF 28
Doc. 187 at 16-17. But the district court rejected that argument. It concluded that Defendants had violated their procedures by executing Joseph Franklin when stay remedies were pending, but it reasoned that Defendants were unlikely to do so again. See ECF Doc. 196 at 10 (Because Defendants have violated a portion of their protocol on one occasion does not mean Defendants are likely to do it again.). Of course, Defendants did do so again during the next two executions. D. Mr. Taylor did not delay, unduly or otherwise, the preparation and filing of the underlying motion for stay. The district court also reasoned that Mr. Taylor had unnecessarily delayed the assertion of his equal protection and due process claims. Exhibit C at 2; ECF Doc. 370 at 2. Although Mr. Taylors execution date was not scheduled until January 24, the district court noted that Herbert Smulls execution took place on January 29. Id. The court also observed that Mr. Taylor has numerous attorneys, and that Mr. Taylor filed two other motions for stay several days earlier than the one asserting his equal protection and due process claims. Id. But these circumstances do not justify denying a stay. For one thing, capital litigation under a death warrant is a harrowing process, and the reason that Mr. Taylors motion was filed several days after the others is precisely because counsel were hurriedly and all-encompassingly engaged in litigating Mr. Taylors other remedies. The mere fact that the last motion was filed after the other ones does not mean that counsel were sitting on their hands, or that time and resources were
29
available to assert this motion at the same time as the earlier ones. Counsel direct the courts attention, in particular, to their painstaking and detailed recounting of the circumstances surrounding the last three executions, and also to the development of twenty-one related exhibitsall of which are exceedingly painstaking tasks. See ECF Docs. 363 at 1-13; ECF Docs. 364-366. Moreover, the mere fact of a five-day period between the filing of a motion and an execution date is unremarkable under the circumstances of this case and is not a sufficient basis for denying a stay. The underlying motion was filed well in advance stay motions that were filed in relation to the last three executions, and as to which Defendants filing below does not dispute that Defendants are responsible for the fact of having killed three prisoners while the courts were still considering their claims. See, e.g., ECF Doc. 157 (Franklin stay motion filed Nov. 18, 2013; execution scheduled Nov. 20, 2013); ECF Doc. 301 (Smulls stay motion filed Jan. 26, 2014; execution scheduled Jan. 29, 2014). The type of delay described by the district court is not the type of delay that justifies the denial of a meritorious stay motion. There is a a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay. Hill, 547 U.S. at 584. But there is no way that Mr. Taylor could have fully litigated his claim without needing a stay. He and his fellow plaintiffs asserted the instant claims in their First Amended Complaint (filed Dec. 3, 2013) as well as their Second 30
Amended Complaint (filed January 27, 2014). ECF Docs. 183, 312. The State carried out the three illegitimate executions at issue on November 20, December 11, and January 29. A trial is set in the district court for June 2014. Mr. Taylor should be allowed to litigate his claim, rather than having them extinguished by his execution. So long as Mr. Taylor could not have brought his claims without requiring a stay, it is inappropriate for a court to deny a stay on the grounds of equitable delay. See Hill, 547 U.S. at 584; Powell v. Thomas, 784 F. Supp. 2d 1270, 1278 (M.D. Ala. 2011) (no inexcusable delay even though prisoner could have filed this action several weeks ago, because a stay would have been required even if the prisoner had done so); Walker v. Epps, 287 Fed. Appx 371, 377-80 (5th Cir. 2008) (King, J., dissenting) (no inequitable delay where state was dilatory in responding to the prisoners lawsuit). Finally, it is the Defendants themselves who are responsible for the fact that three prisoners have been executed while their claims were pending, as well as the fact that Mr. Taylor and his fellow plaintiffs face the same fate. That, anyway, is what has been found the jurists whose authority the State has flouted. According to Judge Laughrey, Defendants seem to think that they are able to decide for themselves ... when they can proceed in the face of pending litigation and when they need not be concerned about pending litigation. ECF Doc. 242 at 2. According to Judge Bye, Nicklasson was entitled to have this court complete its equitable review under Hill to determine whether he was entitled to a stay before Missouri actually executed him. Nicklasson v. Lombardi, Case No. 13-3664, Amended Order dated Dec. 23, 2013, 31
at 2 (Bye, J., dissenting), at 14-15 (Exhibit B). And according to Chief Judge Riley, I think you need to be a little more patient. See Oral argument in Forrest, No. 12-2888, at 45:35 - 45:40. CONCLUSION For all the foregoing reasons, Mr. Taylor respectfully requests that the Court grant his motion for stay of execution, grant panel rehearing and rehearing en banc, and afford such other relief as law and equity require. Respectfully submitted, SEAN K. KENNEDY Federal Public Defender DATED: February 25, 2014 By s/ Matthew B. Larsen Matthew B. Larsen Deputy Federal Public Defender 321 East 2nd Street Los Angeles, CA 90012 Phone: (213) 894-2911 Counsel for Appellant M.A. Taylor
32
CERTIFICATE OF SERVICE I hereby certify a true and correct copy of the foregoing was forwarded for transmission via Electronic Case Filing (ECF) this 25th day of February, 2014, to Susan D. Boresi, Esq. Michael Joseph Spillane, Esq. Stephen David Hawke, Esq. Andrew Tyler Bailey, Esq. David James Hansen, Esq. Assistant Attorneys General P.O. Box 899 Jefferson City, Missouri 65102 s/ Matthew B. Larsen MATTHEW B. LARSEN
Appellate Case: 14-1388
Page: 41
Date Filed: 02/25/2014 Entry ID: 4127041
EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
EXHIBIT A
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No: 13-3664 David Zink, et al. Allen L. Nicklasson Appellant John C. Middleton, et al. v. George A. Lombardi, et al. Appellees __________________________________________________________________ Appeal from U.S. District Court for the Western District of Missouri - Jefferson City (2:12-cv-04209-NKL) __________________________________________________________________ AMENDED ORDER The petition for rehearing en banc, the petition for rehearing by panel and the motion for stay of execution are denied as moot. Judge Duane Benton did not participate in the consideration or decision of this matter. BYE, Circuit Judge, with whom KELLY, Circuit Judge, joins, dissenting.
EXHIBIT B
Appellate Case: 13-3664 14-1388 Page: 1 8 Date Filed: 12/23/2013 02/25/2014 Entry ID: 4108311 4127041
At approximately 10:52 p.m. on December 11, 2013, Missouri executed Allen Nicklasson before this court had completed its review of Nicklasson's request for a stay of his execution, a request he brought in a pending action challenging the constitutionality of Missouri's execution protocol. That bears repeating. Missouri put Nicklasson to death before the federal courts had a final say on whether doing so violated the federal constitution. Missouri has a well-documented history of attempting to execute death row inmates before the federal courts can determine the constitutionality of the executions. In 1983, Missouri set an execution date for Doyle Williams before the time had run for Williams to petition the Supreme Court for direct review of his conviction and death sentence. Supreme Court Justice Harry Blackmun stayed the execution, specifically advising Missouri that a "defendant must have at least one opportunity to present to the [Supreme Court] his claims that his death sentence has been imposed unconstitutionally." Williams v. Missouri, 463 U.S. 1301, 1301-02 (1983). Just a few months later, however, Missouri set the execution dates of four death row inmates Samuel Lee McDonald, Leonard Marvin Laws, Thomas Henry Battle, and George Clifton Gilmore before the time had run for the filing and disposition of a petition for certiorari on direct review of the men's convictions and death
EXHIBIT B
sentences.
In the order entering a stay of the executions, Justice Blackmun
unequivocally stated that
[e]very defendant in a state court of this Nation who has a right of direct review from a sentence of death, no matter how heinous his offense may appear to be, is entitled to have that review before paying the ultimate penalty. The right of review otherwise is rendered utterly meaningless. It makes no sense to have the execution set on a date . . . before [judicial] review is completed.
McDonald v. Missouri, 464 U.S. 1306, 1307 (1984). Additionally, Justice Blackmun reminded Missouri of what he said in Williams:
I thought I had advised the Supreme Court of Missouri once before, in Williams, that, as Circuit Justice of the Circuit in which the State of Missouri is located, I, upon proper application, shall stay the execution of any Missouri applicant whose direct review of his conviction and death sentence is being sought and has not been completed. I repeat the admonition to the Supreme Court of Missouri, and to any official within the State's chain of responsibility, that I shall continue that practice. The stay, of course, ought to be granted by the state tribunal in the first instance, but, if it fails to fulfill its responsibility, I shall fulfill mine.
Id. (emphasis added).
Thirteen months after Justice Blackmun's admonition, Missouri set an execution date for Walter Junior Blair. Prior to his execution date, Blair had filed a
EXHIBIT B
Appellate AppellateCase: Case:14-1388 13-3664 Page: Page:10 3 Date DateFiled: Filed:12/23/2013 02/25/2014Entry EntryID: ID:4108311 4127041
petition for writ of habeas corpus in federal district court. Blair then filed a motion with the Missouri Supreme Court requesting a stay of his execution to give him a meaningful opportunity to exercise his constitutional right of federal habeas review. The Missouri Supreme Court nonetheless summarily denied the request for a stay. A federal district court was thus required to step in and stay the execution. See Blair v. Armontrout, 604 F. Supp. 723, 723 (W.D. Mo. 1985). In so doing, the court noted that
[b]y refusing the petitioner's request for a stay of execution, the Missouri Supreme Court has in effect authorized the execution of a condemned prisoner without affording him the opportunity to exercise his constitutional right of federal habeas corpus review. In so doing, the Missouri Supreme Court ignored its responsibility to stay executions while federal judicial review is pending.
Id. at 724. The district court reiterated the admonitions Justice Blackmun had given Missouri in Williams and McDonald, and expressly held "[a] state prisoner sentenced to death is constitutionally entitled to habeas corpus review," id. at 725, adding that the principle of comity (i.e., federal courts first affording states the opportunity to perform their constitutional duties) "will be jeopardized if the Missouri Supreme Court continues to ignore its well-defined responsibility concerning requests for stays of execution due to pending federal review. Since the Missouri Supreme Court has failed to accept its responsibility, I shall accept mine." Id.
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Less than a year after Blair, Missouri set January 6, 1986, as the execution date for Gerald M. Smith. At the time, Smith was a death row inmate whose competency was in question based upon his indecision about whether to pursue available state and federal remedies attacking his conviction and death sentence, or abandon his legal proceedings and proceed with his execution. Smith's brother, Eugene Smith, filed a next-friend petition in a Missouri state court seeking a determination of his brother's competency before Missouri proceeded with the execution; Eugene also filed a motion in the Missouri Supreme Court to stay the execution until his brother's competency could be determined. The Missouri Supreme Court summarily denied the request for a stay "in one line and without any explanation." Smith By and Through Smith v. Armontrout, 626 F. Supp. 936, 938 (W.D. Mo. 1986). After Eugene obtained a ruling in the state trial court that his next-friend petition was a valid action under Missouri law, the Missouri Supreme Court postponed the execution for nine days, but ultimately "issued an order which, in effect, stated that the next-friend [proceeding] . . . was a legal nullity and that no further extensions of Gerald Smith's execution date would be granted." Id.
Once again, a Missouri litigant was required to turn to the federal courts to ensure that Missouri complied with constitutional requirements mandated by the United States Supreme Court before carrying out an execution. See Rees v. Peyton,
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384 U.S. 312, 313-14 (1966) (explaining the competency procedures which any court of this nation, state or federal, must follow when a death row inmate announces an intention to abandon further appeals and proceed with an execution). In staying Missouri's execution of Gerald Smith until his competency could be determined, the federal district court stated "it becomes painfully obvious that the Missouri Supreme Court's refusal to stay Gerald Smith's execution pending a competency determination . . . had no basis in fact nor in law, but was merely an expedient way of washing its hands of the matter and passing the buck to the Federal courts." Smith, 626 F. Supp. at 940. The district court further noted "[t]his is not the first time that the Missouri Supreme Court has passed the buck to the Federal courts by refusing to perform its legal obligation to stay an execution . . . when the law required a stay to permit postconviction appeals to be heard in an orderly manner," id., and referred to the prior Williams, McDonald, and Blair cases. The district court also commented on the necessary and inevitable tension which exists between a state's choice to utilize death as a penalty on one hand, and the safeguards our Founding Fathers saw fit to include in our federal constitution on the other:
This Court is aware that many members of the public are frustrated with what seems to be inordinate delay in the processing of appeals by death row inmates. Indeed, many people believe that there should be no appeals whatsoever following the jury's imposition of the death
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sentence. The law, on the other hand, provides that certain procedures must be followed before a death sentence may be carried out. Although it may not win a popularity contest in any given case, this scheme was adopted to ensure that every individual would be accorded due process of law.
Id. at 940 n.3 (emphasis added). In May 2005, Missouri death row inmate Vernon Brown challenged the threechemical protocol Missouri used in its executions at the time. Brown was one of the first death row inmates to participate in what subsequently became a multi-state challenge to this three-chemical protocol, incited in large part by the publication of an April 2005 article in the medical journal The Lancet. The article analyzyed autopsy toxicology results from forty-nine executions where the three-chemical sequence of sodium pentothal1 (a sedative), pancuronium bromide (a paralytic), and potassium chloride (a very painful drug which induces a heart attack) was used to carry out the executions. The article's authors essentially concluded that in almost half of the autopsies examined (43%), the amount of sedative used in the executions would have been insufficient to render the inmate unconscious. "In other words, the use of this three-chemical sequence results in a possibility the person to whom it is administered will be conscious when the inherently painful potassium chloride takes effect, yet no one will know because of the paralytic effects of the pancuronium
Sodium pentothal is sometimes referred to as thiopental.
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bromide." Brown v. Crawford, 408 F.3d 1027, 1028 (8th Cir. 2005) (Bye, J., dissenting). The evidence Brown asked us to consider included the fact that nineteen states had passed laws banning the use of a similar protocol to euthanize animals. Brown alleged Missouri is "using a combination of chemicals they knew or should have known would cause an excruciating death when they were telling the public it was like putting a dog to sleep, when their own veterinarians would lose their licenses for using the same chemicals on a stray." Id. (quoting Brown v. Crawford, No. 4:05VV-746-CEJ, Motions for Temporary Restraining Order at 19). The article in The Lancet had been published just a month before Brown's execution date. He relied upon it to bring an eleventh-hour challenge to his execution, merely asking Missouri to disclose the level of sodium pentothal it would use in his execution before executing him hardly an onerous request. In refusing to disclose information about the dosage levels used in its execution protocol, Missouri trumpeted the need to proceed with Brown's execution post haste in order to provide the families of the victims of his crimes with closure. Against my dissent, the Eighth Circuit said Missouri could execute Brown without first disclosing whether its protocol utilized an adequate dosage of sodium pentothal. Brown was strapped to a gurney at 11:30 p.m., and left there for three hours before a divided Supreme Court finally denied his request for a stay and allowed Missouri to proceed with his execution.
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Missouri death row inmate Michael Anthony Taylor also challenged Missouri's use of the three-chemical protocol. In more reflective deliberations not burdened by the eleventh-hour nature of Vernon Brown's challenge, the federal courts handling Taylor's suit understandably recognized he, along with other Missouri death row inmates, were entitled to know the dosage levels Missouri used in its execution protocol before Missouri could execute them. Taylor discovered numerous and significant problems with Missouri's execution protocol, including inconsistencies between the amounts of sodium pentothal Missouri claimed to be using in every execution, and chemical dispensary logs which showed much lower amounts of the sedative actually being used in several executions. See Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035, at *3 (W.D. Mo. June 26, 2006). Incredibly, Missouri had not adopted a written protocol for its executions. Even more incredibly, Missouri gave unfettered
discretion to an admittedly dyslexic physician to implement the state's unwritten protocol, including the responsibility of correctly mixing the drugs used in executions. Id. at *4-8. The district court's observations bear repeating here:
After learning more about how executions are carried out in Missouri, through the interrogatories submitted to the John Doe defendants, reviewing the chemical dispensary logs, reviewing the videotape of the execution chamber and listening to the testimony of John Doe I, and to the testimony of the other expert witnesses at the June 12-13, 2006 hearing, it is apparent that there are numerous problems. For example,
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there is no written protocol which describes which drugs will be administered, in what amounts and defines how they will be administered. John Doe I testified that he came up with the current protocol. John Doe I also testified that he felt that he had the authority to change or modify the formula as he saw fit. It is apparent that he has changed and modified the protocol on several occasions in the past. He has reduced the amount of thiopental given from 5.0 grams to 2.5 grams and has also changed the location on the inmate's body where the drugs were administered. It is obvious that the protocol as it currently exists is not carried out consistently and is subject to change at a moment's notice. The Court is also concerned that John Doe I possesses total discretion for the execution protocol. Currently, there are no checks and balances or oversight, either before, during or after the lethal injection occurs. No one monitors the changes or modifications that John Doe I makes. John Doe I even testified that the Director of the Department of Corrections, Mr. Crawford, has no medical or corrections background, and that he is "totally dependent on me advising him." (John Doe Depo. p. 64). In addition to the fact that there is no oversight and the responsibility for making changes or adjustments is completely vested in one individual, the Court also has concerns about John Doe I's qualifications. John Doe I readily admitted that he is dyslexic and that he has difficulty with numbers and oftentimes transposes numbers. John Doe I testified "it's not unusual for me to make mistakes. . . . But I am dyslexic and that is the reason why there are inconsistencies in my testimony. That's why there are inconsistencies in what I call drugs. I can make these mistakes, but it's not medically crucial in the type of work I do as a surgeon." (John Doe Depo. p. 25). The Court disagrees and is gravely concerned that a physician who is solely responsible for correctly mixing the drugs which will be responsible for humanely ending the life of condemned inmates has a condition which causes him confusion with regard to numbers. As the Court has learned, the process of mixing the three different drugs and knowing the correct amount of the drugs to dissolve in the correct amount of solution involves precise measurements and the ability to use, decipher, and not confuse numbers. Although John Doe I does not feel this is crucial in the type of work he does as a surgeon, it
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is critical when one is mixing and dissolving chemicals for a lethal injection. In addition, John Doe I testified that although he is not an anesthesiologist, he monitors the anesthetic depth of an inmate by observing the inmate's facial expression. However, as can be seen from the videotape of the execution chamber, when the inmate is lying on the gurney in the execution room, the inmate is facing away from the Operations room where John Doe I is located. Additionally, it is dark in the Operations room and there are blinds on the window which are partially closed and obstruct the view. This would make it almost impossible for John Doe I to observe the inmate's facial expression. This leads the Court to conclude that there is little or no monitoring of the inmate to ensure that he has received an adequate dose of anesthesia before the other two chemicals are administered.
Id. at *7-8. The district court ultimately concluded "Missouri's lethal injection procedure subjects condemned inmates to an unnecessary [and unacceptable] risk that they will be subject to unconstitutional pain and suffering when the lethal injection drugs are administered." Id. at *8. The district court ordered Missouri to prepare a new written protocol for the implementation of lethal injections to ensure compliance with the federal constitution. Id. The Eighth Circuit vacated the injunction entered by the district court to prevent Missouri from proceeding with any executions only after Missouri adopted a detailed written execution protocol, and indicated it would no longer use the services of the dyslexic physician. See Taylor v. Crawford, 487 F.3d 1072, 1077 n.3, 1082-85 (8th Cir. 2007).
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II With this history of Missouri's implementation of the death penalty in mind, I turn to Allen Nicklasson's now-moot challenge to Missouri's more recent, everchanging execution protocol. Allen Nicklasson was one of a number of Missouri death row inmates who filed suit raising constitutional challenges against an execution protocol Missouri announced on May 15, 2012. The new protocol would utilize just a single drug, propofol, to carry out executions. The inmates filed their lawsuit in Missouri state court, but Missouri's choice to remove it triggered our federal review.
The inmates' challenge to Missouri's execution protocol is no longer about the use of propofol because Missouri has changed the protocol numerous times since May 2012, while still actively scheduling new executions. Joseph Franklin was also one of the death row inmates participating in this constitutional challenge to Missouri's execution protocol. Missouri scheduled, and completed, Franklin's execution on November 20, 2013, notwithstanding the fact it changed the execution protocol no less than five times between August 1, 2013, and November 20, 2103, with the last protocol change occurring just five days before Franklin was executed. The issues currently involved in this protocol litigation include the fact that Missouri is resorting to secret compounding pharmacies to concoct copycat versions
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of the drug pentobarbital to carry out its executions. Applying Hill v. McDonough, 547 U.S. 573 (2006), the district court presiding over the protocol litigation entered a stay of Franklin's execution after concluding the inmates showed "a significant likelihood of success on the merits, a showing of irreparable harm in contrast to relatively little harm to [Missouri], and no fault in the delay of their current case pending before this Court." Zink v. Lombardi, No. 2:12-CV-4209-NKL, 2013 WL 6080358, at *8 (W.D. Mo. Nov. 19, 2013).
With respect to the moving target Missouri kept presenting to the inmates by constantly changing its execution protocol while still going forward with Franklin's execution (and now Nicklasson's), the district court said
[death penalty] litigation is not a game of chess. Hill was intended to be a shield to protect defendants from abusive litigation practices by death row inmates. But it was never intended to be used as a sword permitting defendants to disrupt and delay the litigation process and then complain that time is up. Neither the Plaintiffs nor the Court have been able to address the merits of Plaintiffs' claim that the Defendants have adopted an execution protocol that violates the U.S. Constitution, because the Defendants keep changing the protocol that they intend to use. It would be a substantial departure from the way in which law suits are generally handled by this Court, to allow Defendants to succeed with this strategy. Rather, the pending dispute between the parties should be resolved on the merits after a reasonable opportunity for both sides to be heard, followed by a prompt, final order resolving the dispute. That is how it is normally done in America and it is a system that has worked quite well.
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Id. at *6. I agreed with the district court's analysis and voted to stay Franklin's execution. Although a majority of my colleagues disagreed, and Franklin was allowed to be executed, I still agree with the district court's analysis, which is why I voted to stay Nicklasson's execution as well.
My point, however, in this dissent from the denial of the petition for rehearing en banc of Nicklasson's request for a stay, is not to discuss or rehash the merits of the current protocol litigation. Rather, I feel obliged to say something because I am alarmed that Missouri proceeded with its execution of Allen Nicklasson before this court had even finished voting on Nicklasson's request for a stay. In my near fourteen years on the bench, this is the first time I can recall this happening. In litigation raising a constitutional challenge to his execution, a death row inmate sought a stay of his execution under Hill, and before the federal courts had issued a final decision on the pending request for a stay, Missouri carried out the execution. While the current protocol litigation is not among the category of cases for which Nicklasson was entitled to an automatic stay of his execution, it was nonetheless a claim that Missouri would violate the federal constitution by executing him. As a result, Nicklasson was entitled to have this court complete its equitable review under Hill to determine whether he was entitled to a stay before Missouri
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actually executed him. By proceeding with Nicklasson's execution before our court had completed voting on his petition for rehearing en banc, Missouri violated the spirit, if not the letter, of the long litany of cases warning Missouri to stay executions while federal review of an inmate's constitutional challenge is still pending.
III Missouri's past history of scheduling executions before a death row inmate has exhausted his constitutional rights of review, using unwritten execution protocols, misrepresenting dosage levels for drugs used in lethal injections, and providing unfettered discretion to a dyslexic physician to mix the drugs and oversee its executions, has earned from this federal judge more than just a healthy judicial skepticism regarding Missouri's implementation of the death penalty. Its current practice of using shadow pharmacies hidden behind the hangman's hood, copycat pharmaceuticals, numerous last-minute changes to its execution protocol, and finally, its act of proceeding with an execution before the federal courts had completed their review of an active request for a stay, has committed this judge to subjecting the state's future implementation of the penalty of death to intense judicial scrutiny, for the sake of the death row inmates involved as well as adversaries and advocates of capital punishment alike. _____________________________
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December 23, 2013 Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit /s/Michael E. Gans
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13-3664 Appellate Case: 14-1388 16 Page: 23 12/23/2013 Entry ID: 4127041 4108311 Date Filed: 02/25/2014
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION DAVID ZINK, et al., Plaintiffs, v. GEORGE A. LOMBARDI, et al., Defendants. ) ) ) ) ) ) ) ) ) ORDER This matter comes before the Court on Plaintiff Michael Taylors Motion for Stay of Execution Based on Equal Protection and Due Process Clauses. (Doc. 363.) Taylor is one of 18 death row inmates in this case challenging the constitutionality of the execution protocol issued by the Missouri Department of Corrections. On January 24, 2014, the Missouri Supreme Court ordered that Taylor be executed on February 26, 2014. For the reasons below, the Motion is DENIED. I. Discussion [B]efore granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Nelson v. Campbell, 541 U.S. 637, 649-50 (2004); Nooner v. Norris, 491 F.3d 804, 808 (8th Cir. 2007). An inmate challenging the manner in which the State plans to execute him must show a significant possibility of success on the merits. Hill v. McDonough, 547 U.S. 573, 584 (2006); Nooner, 491 F.3d at 808. A. Unnecessary Delay
Case No. 12-04209-CV-C-BP
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Case 2:12-cv-04209-BP Document 370 Filed 02/24/14 Page 1 of 4 Appellate Case: 14-1388 Page: 24 Date Filed: 02/25/2014 Entry ID: 4127041
The Court first concludes that Taylor unnecessarily delayed in bringing his claim. Taylor argues he has presented his equal protection claim as promptly as possible, contending that: (1) his equal protection claim did not fully ripen until the Plaintiffs Franklin, Nicklasson, and Smulls were executed; (2) his execution date was only set on January 24; and (3) since January 24, his counsel have been hurriedly litigating this case and related cases before several courts. The Court is not persuaded by these arguments. First, Franklin and Nicklasson were executed well before Taylors execution date was set in November and December 2013. Additionally, Smulls was executed on January 29, 2014, only a few days after Taylors execution date was set. Second, Taylor and the remaining Plaintiffs in this case have numerous counsel handling this litigation and related cases in other courts, who offered two other motions for stay of execution several days before the instant Motion. The evidence shows that Taylor could have brought his Equal Protection and Due Process claim earlier than five days before his scheduled execution. Thus, Taylor was unnecessarily delayed in bringing this claim and the Court can deny his Motion on that ground alone. Nonetheless, the Court will proceed to review Taylors likelihood of success on the merits of these claims. B. Likelihood of Success on the Merits Even if Taylor did not unnecessarily delay in bringing his claim, he cannot show a likelihood of success on the merits of the claim. Taylor argues that Missouri executed Plaintiffs Franklin, Nicklasson, and Smulls while viable stay proceedings were pending in the federal courts, in violation of Defendants written procedures. Taylor specifically relies on the
procedure which states the director of the Department of Corrections, or his designee, advises the warden that the inmate may be escorted to the execution room if no stay is in place and no legal activity is in process to prevent the execution. (Doc. 364-7.) Taylor contends that by failing to
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follow the written procedure, Defendants are not complying with core aspects of the procedure in violation of the Fourteenth Amendments guarantee of equal protection and his right to due process. First, Taylor has not established that the alleged violation of the written procedure is a core aspect of the procedure. The cases on which Taylor relies involve alleged violations of an execution procedure regarding provisions involving: (1) preparation of the execution drugs; (2) preparation of the inmate for administration of the drugs; (3) the manner of administration of the drugs; and (4) who participates in the execution. Cooey v. Kasich, 801 F. Supp. 2d 623 (S.D. Ohio 2011); see also In re Ohio Litigation, 840 F. Supp. 2d 1044 (S.D. Ohio 2012) (holding defendants did not substantially comply with the execution procedure for violations similar to those alleged in Cooey). Those provisions were clearly core to the written procedure, as they pertained to properly administering and carrying out the executions of inmates. Taylor has not presented any authority to suggest that the procedure in question is a core aspect of an execution procedure. Second, Taylor has not shown a violation of a fundamental right. Although Taylors motion fails to state what fundamental right is violated, Plaintiffs Second Amended Complaint (Doc. 338) alleges Defendants failure to follow the written procedure violates Plaintiffs fundamental rights under the Eighth Amendment to be free of cruel and unusual punishment. (Doc. 338, p. 150.) The Court questions whether a violation of the procedure in question is a violation of the Eighth Amendment. Moreover, as this Court and the Eighth Circuit have repeatedly held, Plaintiffs have not presented sufficient evidence to establish Defendants execution protocol violated the Eighth Amendment for Plaintiffs Franklin, Nicklasson, or Smulls. (See Docs. 184, 196, 301, 319.) Taylor has presented no new evidence to the Court that
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warrants a different ruling than in the Franklins, Nicklassons, or Smulls cases. Therefore, Taylor cannot show a fundamental right has been violated that would give rise to an Equal Protection and Due Process claim. Third, Defendants argue the written procedure calls for the Director or his designee, as opposed to some other official, to determine whether an inmate may be moved to the execution room despite a pending stay motion. Essentially, they contend the Director ultimately decides, after obtaining the advice of the Attorney General, whether to proceed with the execution when there is pending litigation that has not resulted in a stay. In light of this argument, it is unclear whether Defendants actions in past executions amount to a violation of the written procedure. Thus, it is unclear whether a violation of Plaintiffs Equal Protection and Due Process rights has occurred. Therefore, Taylor has not shown a likelihood of success on the merits for his claims. C. Conclusion Accordingly, Taylors Motion for Stay of Execution, (Doc. 363), is DENIED. Plaintiffs Motions for Leave to File Exhibits, (Docs. 364, 365, 366), are GRANTED. IT IS SO ORDERED. /s/ Beth Phillips BETH PHILLIPS, JUDGE UNITED STATES DISTRICT COURT DATE: February 24, 2014
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James S. Liebman Simon H. Rifkind Professor Columbia Law School 435 W. 116th St. New York, NY 10027 212-854-3423 jliebman@law.columbia.edu
February 19, 2014, updated at 10:45 pm EST Representative Jay Barnes Chairman, Missouri House Oversight and Accountability Committee 201 W. Capitol Avenue, Rm. 415B Jefferson City, MO 65101 Via email: Jay.Barnes@house.mo.gov Re: Inaccurate presentation of my views in testimony to the House Oversight and Accountability Committee on February 10, 2014 Dear Chairman Barnes: It has recently come to my attention that Missouri Assistant Attorney General David Hansen inaccurately represented my views to the Committee in testimony on February 10, 2014. Mr. Hansen was testifying on the question whether it is appropriate for state officials to proceed with an execution despite knowing that the prisoner has filed papers in the United States Supreme Court that could result in a stay of the execution and, potentially, the invalidation of the state court order warranting the execution. This, of course, is exactly what Mr. Hansens office did in the case of Herbert Smulls who was executed by Missouri on January 29, 2014, despite knowing that Mr. Smulls had pending before the United States Supreme Court a request for a stay of execution and for review on certiorari of certain constitutional challenges to his death sentence and those of other prisoners. It is my understanding that the question of the appropriateness of this action by Mr. Hansens office was a matter under consideration at the hearing before your Committee. At page 4 of the transcript of Mr. Hansens testimony, he responds to a question from the Committee about whether his offices practice of proceeding with an execution despite the pendency of papers that could invalidate its legal basis was common practice in other states. Mr. Hansen answered: No. I havent looked at other states and Ive seen it reported by the plaintiffs attorneys. Ive seen articles recently where theyve contended that this is I heard earlier today from Mr. Luby that this is a uniquely Missouri experience. I think with some diligence you can determine that thats not the case. And I would also, because weve seen this
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language from the United States Supreme Court over the last couple years something that I just read to you thats indicated that requesting a stay is not enough. But I would also like to cite, I just saw an article in the last week where a Columbia Law School professor was asked a question, Columbia Law School Professor Jim Liebman, and he asked whether this happens anywhere else. And he said Its unusual but its not unheard of for an execution to proceed with an appeal still pending. (01:59:32) He agreed that corrections officials could reach the point of believing that enough is enough. You wouldnt be surprised if the State felt that way maybe with justification . So thats a law school professor from New York who is quoted in an article thats been nationwide. Mr. Hansens reference to my views is inaccurate in two important respects. The reporter to whom I spoke, Jim Salter of the Associated Press, published a story on January 30, 2014 under the headline: Lawyers: Mo. Moving Too Quickly on Executions . The article is available at http://bigstory.ap.org/article/lawyers-mo-moving-too-quickly-executions. Mr. Salter asked me if I had heard of other states taking this kind of action, and I told him that I was unaware of any state besides Missouri that had proceeded in this fashion. It was in this context, that I made the statements that Mr. Salter attributed to me in his Associated Press article, as follows: Columbia Law School professor Jim Liebman said it is unusual, but not unheard of, for an execution to proceed with an appeal still pending. He agreed that corrections officials could reach the point of believing that enough is enough. "You wouldn't be surprised if the state felt that way, maybe with justification, but the procedure is to have a court say that, not for the state to say that," Liebman said. (emphasis added). The first problem with Mr. Hansens paraphrase of my statement to the Associated Press reporter is that he uses it to suggest that I believe Missouris practice has been replicated in other states. In fact, I was saying that the practice is unusual, though not unheard of, in Missouri. As I understand it, Missouri officials have followed this practice in only 3 of the States 71 modern executions. I am aware of no other state that follows this controversial practice. The second problem with Mr. Hansens testimony is that it quoted only half of the statement I made to the Associated Press and omitted the other half in which I criticized his office for taking exactly the action that he purports to quote me as endorsing. As I told the Associated Press, in my opinion, it is not appropriate for state officials to make the unilateral decision that papers pending in the United States Supreme Court that could result in a stay of execution and, eventually, a reversal of the death warrant are frivolous and thus may be ignored in order to allow an execution to occur without a final court ruling. Instead, I said, the better procedure is to have a court say that, not for the state to say that. I pointed out that the Supreme Court has occasionally issued orders in capital cases saying it will no longer entertain papers from a particular capital prisoner, having found that previous papers filed were frivolous. I pointed out that, if Missouri believed that this same point had been reached in Mr. Smulls casea
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conclusion that Mr. Smulls and his attorneys strongly disputedit would not be appropriate for one adversary to resolve that matter unilaterally over the objection of the other. Instead, Mr. Hansens office should have formally asked the Supreme Court to deny Mr. Smulls pending papers and to refuse to accept further papers from him, thus allowing the state to proceed with an execution without fear that the legal basis for that solemn and irreversible action was in doubt. Only then would the crucial contested matter of law and fact have been resolved, not unilaterally by one party to the dispute, but by the decision of a neutral court of law. The aftermath of Mr. Smulls case provides some support for this view. It is my understanding that, after learning that Missouri had gone ahead with Mr. Smulls execution without awaiting for a ruling on the papers he and others had filed, the U.S. Supreme Court asked Mr. Hansens office to file a response to those papers. It is the practice of the Court to ask for a response only when there is a colorable claim to be responded to, which is hardly an indication that the Court agreed with Mr. Hansens office, and disagreed with Mr. Smulls and his attorney s and the other petitioners on whether the claims raised were frivolous. By requesting a response, the Court has given at least some indication that it was in doubt whether the execution was legally appropriate in view of the claims Mr. Smulls had raised in the papers that were pending unresolved in the Court when the execution occurred. In order to set the record straight on my views on these matters, I respectfully request that the Committee include this letter in the record of its proceedings on the issues to which I refer above. I greatly appreciate your consideration of this request and your Committees consideration of the important issues presented by the procedures used in the course of executing Mr. Smulls.
Sincerely,
James S. Liebman Simon H. Rifkind Professor of Law
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cc Hon. John Rizzo Hon. Kevin McManus Hon. Mark Parkinson Hon. Tom Flanigan Hon. Jeff Messenger Hon. Gina Mitten Hon. Chris Molendorp Hon. Tommie Pierson Hon. Todd Richardson Hon. Paul Fitzwater Hon. Chris Koster Hon. David Hansen Joe Luby, Esq.
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Taylor Motion

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IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MICHAEL ANTHONY TAYLOR, Plaintiff/Appellant, v.

GEORGE LOMBARDI, et al., Defendants/Appellees ) ) ) ) ) ) ) ) )

Appellate Case: 14-1388

Date Filed: 02/25/2014 Entry ID: 4127041

In the order entering a stay of the executions, Justice Blackmun

unequivocally stated that

Id. (emphasis added).

Sodium pentothal is sometimes referred to as thiopental.

Case No. 12-04209-CV-C-BP

Appellate Case: 14-1388

Date Filed: 02/25/2014 Entry ID: 4127041

Appellate Case: 14-1388

Date Filed: 02/25/2014 Entry ID: 4127041

James S. Liebman Simon H. Rifkind Professor of Law

Appellate Case: 14-1388

Date Filed: 02/25/2014 Entry ID: 4127041

Appellate Case: 14-1388

Date Filed: 02/25/2014 Entry ID: 4127041

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