Patterico's Pontifications

11/2/2009

L.A. Times Again Falsely Claims That a Federal Judge Put Executions on Hold in California

Filed under: Dog Trainer — Patterico @ 1:04 am



I have several bones to pick with David Savage’s latest article on a California death penalty case. First and foremost, Savage gets it wrong when he says this:

In December 2006, a federal judge put executions on hold in California while the state revised its protocol for lethal injections.

Not so.

We went down this road already, the last time the L.A. Times made an identical claim (and then corrected it after I noted the error). I laid out the logic in this post from February. I’ll just repeat the reasoning here for those too lazy to click:

[Judge Jeremy Fogel, the federal judge in question,] didn’t impose a moratorium and he didn’t stay the execution.

You can read his order for yourself, here. Show me where it says he is imposing a moratorium or staying an execution. You can’t, because he didn’t do that.

He said the execution could proceed. I’m about to give you the quote.

So why didn’t the execution take place? Because Judge Fogel made the execution impossible as a practical matter, by issuing an order that couldn’t be followed — namely, that a licensed medical professional participate in the execution:

[W]hile Defendants may proceed with the execution this evening using only sodium thiopental, they may do so only if the sodium thiopental is injected in the execution chamber directly into the intravenous cannula by a person or persons licensed by the State of California to inject medications intravenously.

The problem was, the state couldn’t make this happen:

“Nobody with a medical license could do this,” because it goes against medical organizations’ ethics, Dane Gillette, a senior assistant attorney general and the state’s death penalty coordinator, said in an interview.

He said registered nurses and medical technicians on the prison staff were licensed to administer drugs intravenously. However, the state was not willing to ask any of them to do so in public view, Gillette said. The state is prohibited by law from ordering its medical personnel to participate in executions.

Nor did Judge Fogel impose a moratorium months later, in his ridiculous December 2006 opinion, which I shredded in this post. You can search the opinion in vain for the word “moratorium.” You won’t find it.

Indeed, he doesn’t even clearly say that California’s execution protocol is unconstitutional. His opinion is not even a decision; it’s captioned a “memorandum of intended decision.” In other words, the judge said: “If you make me rule, this is how I intend to rule.” Even in that context, the closest he comes is to declaring the execution protocol unconstitutional was when he said that “the evidence is more than adequate to establish a constitutional violation” — a conclusion supported (as I explained in my post) by a blatantly extralegal shifting of the burden to the defendants to prove that the protocol was constitutional, when the burden actually rested with the plaintiffs to prove it was not.

But even this language doesn’t really establish a constitutional violation, so much as a memorandum of an intent to rule that there was a “risk” of a constitutional violation. That’s how mealy-mouthed this wordy excrescence was. As one reads the opinion further, one learns that the “constitutional violation” in question was the risk that a constitutional violation might occur. I’m not making this up! The judge said:

Defendants’ actions and failures to act have resulted in an undue and unnecessary risk of an Eighth Amendment violation. This is intolerable under the Constitution.

This is jurisprudential vomit. It deserves no respect — just an immediate appeal to clean it up.

As I explained in my previous post, the judge didn’t put executions on hold. He just threatened to — and the Attorney General essentially just caved in. As a result, there is a de facto moratorium because the Attorney General’s office is not seeking to have execution dates set.

I also have a problem with Savage’s statement discussing the higher execution rates of states like Texas and Virginia as compared to California:

The stark differences in execution rates reflect the contrasting approaches of the regional U.S. courts of appeals.

In the South, the 4th Circuit in Richmond, Va., and the 5th Circuit in New Orleans are dominated by conservative judges who are inclined to reject appeals and to uphold death sentences.

The 9th Circuit, based in San Francisco, has a core of liberal judges who say it is their duty to carefully scrutinize capital cases.

Does that phrasing strike you as neutral? Let’s take the mirror image of that phrasing (with one factual addition) and see how much differently that might read:

The stark differences in execution rates reflect the contrasting approaches of the regional U.S. courts of appeals.

The 9th Circuit, based in San Francisco, is dominated by liberal judges who are inclined to grant appeals and to reverse death sentences. Indeed, Stephen Reinhardt, the author of the majority opinion in the Belmontes case, has never upheld a death sentence in almost 30 years on the federal appellate bench.

By contrast, the 4th Circuit in Richmond, Va., and the 5th Circuit in New Orleans have a core of conservative judges who say it is their duty to uphold death sentences in capital cases where there is no constitutional error.

See how loaded Savage’s wording seems when you take his contemptuous description of conservatives, and his glowing description of liberals, and flip it around?

Finally, Savage says: “Eight conservative judges of the 9th Circuit dissented and said the full appeals court should reconsider the ruling.” Well. Looking at the en banc ruling and dissent, we see that the judges in dissent included Judges Callahan, O’Scannlain, Kleinfeld, Gould, Tallman, Bybee, Bea, and N.R. Smith. Tallman and Gould were appointed by President Clinton. I’ll not quarrel greatly with Savage’s description of Tallman as a conservative; admittedly, Tallman is a Republican who was appointed as part of a political deal. But I’m not sure what Savage’s basis is for saying that Judge Gould is “conservative.” I note that Judge Gould joined Judges Reinhardt and Paez in an exceptionally silly opinion reversing a death verdict, which I criticized in this post. He can’t be all that conservative if he went along with that tripe.

All in all, a poor showing by Savage. That bit about the judge putting executions on hold is a flat error and ought to be corrected. I shall now hold my breath until that happens.

It’s been nice knowing you guys.

18 Responses to “L.A. Times Again Falsely Claims That a Federal Judge Put Executions on Hold in California”

  1. Breathe easy, Mr. Frey, secure in the knowledge that once again you have proven this rag to be good for nothing beyond having bowser use it when nature calls.

    Icy Texan (11a9cb)

  2. Pat,

    You’ve also made the case for impeaching the bulk of the 9th Circuit.

    PCD (1d8b6d)

  3. Why don’t they simple have an abortionist do the deed? It’s not as if they can make a “Sanctity of Life” argument?

    Mike Giles (39c34b)

  4. This guy has been covering legal matters for quite a few years and still can’t read an opinion competently.

    SPQR (26be8b)

  5. I say the electric chair would be a good option. That’s why it was invented. They even have an unused gas chamber. Lethal injection has always been problematic because so many of these individuals are long term narcotics addicts whose veins have been obliterated by years of self injection. Believe me, I’ve tried to find veins in these people. I think lethal injection was part of an anti-death penalty movement and they knew what I’ve just related. It was a feature, not a bug.

    Mike K (2cf494)

  6. This is obviously a process that needs to be “off-shored” to China!

    AD - RtR/OS! (83414c)

  7. Correct me if I’m wrong, but doesn’t the state of California control who gets and what encompasses a medical license in the state?

    Could not they just create a week or two long course and test dealing with whatever the judge’s objections are and everyone who passes gets a license to perform lethal injections?

    Taltos (4dc0e8)

  8. Perhaps we need to re-institute the use of the Executioner’s Hood,
    to preserve the anonymity of the person asked to do society’s dirty work?
    If their identities were protected, I would think there would be many licensed professionals who would volunteer.

    AD - RtR/OS! (83414c)

  9. #4 is one of the best comments ever.

    Old Coot (166f79)

  10. Utah still uses the firing squad.

    Tell you what. Here’s a foolproof execution method and painless to the prisoner. Put a hood over their head, and then put a 12 Gauge with a Deer Slug to the back of the prisoner’s head. Box of 12 Gauge slugs is not that expensive, nor is the gun cleaning kits.

    PCD (1d8b6d)

  11. Tell you what. Here’s a foolproof execution method and painless to the prisoner. Put a hood over their head, and then put a 12 Gauge with a Deer Slug to the back of the prisoner’s head. Box of 12 Gauge slugs is not that expensive, nor is the gun cleaning kits.

    Why did we switch to lethal injection over the gas chamber or hanging?

    Michael Ejercito (6a1582)

  12. Because it was more “humane and compassionate”.

    We are truly Fools of the first order.
    It is long past time to bring back hanging, from a gallows erected in the public square.

    AD - RtR/OS! (83414c)

  13. I’m not much concerned by the method authorized in different states. The technology of execution may properly be left to the states as independent laboratories of democracy. So long as the method is not intended, or reasonably foreseeable to regularly cause, extended torture as part of death (as would be, for example, death by slow disembowelment or other forms of torturing execution understood to be “cruel and unusual” by those who enacted the Eighth Amendment), I don’t see the federal Constitution as compelling one method over another.

    What concerns me from Patterico’s post — and from the decades-long pattern it illuminates — is that there is a barely-covert conspiracy among Leftists and a large number of federal district and circuit judges to actively subvert the Constitution of the United States — as written, and as currently interpreted by the Supreme Court — in death penalty jurisprudence. The death penalty has been a legal fiction in the Ninth Circuit since at least the mid-1970s, and to maintain that farce, the conspirators have been driven to greater and greater acts of illegitimate theater.

    Were I a Californian, I’d be equally outraged that the conspirators are simultaneously subverting the constitution and laws of California — a state whose citizens, through their elected legislators and state executives, have maintained the death penalty in black-letter California law. But the lawless plurality of the liberal elites has been able to maintain its effective dictatorship in this area. I sympathize with the many frustrated conservative Californians. But those Californians who believe in and support the death penalty, but who are unwilling to even try to resist the will of that liberal elite plurality, frankly deserve the government they’re getting.

    Beldar (3dac77)

  14. We are truly Fools of the first order.
    It is long past time to bring back hanging, from a gallows erected in the public square.

    Absolutely.

    Michael Ejercito (6a1582)

  15. Amen, Beldar. I gots nothing else to say that you did not say way betterer than I ever could.

    JD (6dce29)

  16. Beldar – Maybe in a ghoulish way you can hope that the next Democrat governor of California institutes a compassionate Dukakis furlough policy with obvious results and the citizens demand changes.

    daleyrocks (718861)

  17. Why did we switch to lethal injection over the gas chamber or hanging?

    To protect the feelings of the judge, jury and executioner. To make them feel that they are part of a cold, clinical process as far removed from actually ending a life as possible.

    Kind of wimpy, but that is why.

    Uncle Pinky (e4d7c2)


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