Patterico's Pontifications


An Analysis of Judge Fogel’s “Memorandum of Intended Decision” Regarding California’s Lethal Injection Protocol

Filed under: Constitutional Law,Court Decisions,Crime,Dog Trainer,General — Patterico @ 3:09 pm

This is my promised analysis of Judge Fogel’s preliminary opinion finding constitutional flaws in California’s execution protocol.

As I said yesterday, I am not impressed by the decision. In my judgment, the judge is stretching to find a constitutional violation where none has been proved.

My primary problem with the decision is that the judge flips the burden of proof, without admitting that he is doing so. He acknowledges that the plaintiff has failed to make a case that California’s execution protocol is routinely subjecting inmates to an unconstitutional level of pain. But he blames the defendants for the plaintiff’s lack of evidence, and thus shifts the burden of proof to the defendants — without saying that this is what he is doing, or undergoing the rigorous legal analysis necessary to do so.

What did the defendants do to deserve having the burden of proof shifted? The argument is less than compelling. The judge complains about matters as trivial as the sufficiency of the lighting used in the execution chamber, and the type of paper used to record the EKG tracings. He also appears to find constitutional significance in matters such as whether any of the team leaders suffer from post-traumatic stress syndrome, or whether they have been disciplined for things like smuggling illegal drugs into the prison.

Finally, the decision appears to have been written with the media in mind. There are legally irrelevant passages that are included for the apparent purpose of being quoted in newspapers. Perhaps worst of all, the judge relies for part of his evidence on articles printed in the New York Times and the Los Angeles Times.

I kid you not.

Details in the extended entry.

[Extended entry]


Legally, my primary problem with the opinion is that Judge Fogel shifts the burden of proof to the defendants without announcing that he is doing so, or justifying the burden-shifting by reference to established legal principles. Unable to find proof of a constitutional violation, the judge subtly flips the burden of proof over to the defendants, by complaining of deficiencies in the protocol — including many that have absolutely nothing to do with the constitutionality of the execution.

Judge Fogel admits that the burden of proof is on the plaintiff:

Defendants observe correctly that Plaintiff’s burden of proof at the present stage of the instant proceeding is greater than it was at the preliminary-injunction stage.

What’s more, he appears to concede that the burden has not been met, saying that “that there still is no definitive evidence that any inmate has been conscious during his execution.”

Having just said that the plaintiff hadn’t made his case, the judge inexplicably says:

Nonetheless, the evidence is more than adequate to establish a constitutional violation. Given that the State is
taking a human life, the pervasive lack of professionalism in the implementation of OP 770 at the very least is deeply disturbing.

The last time I checked, the fact that something is “deeply disturbing” does not mean it is unconstitutional. Let’s read on to see if Judge Fogel provides any further clarity:

Coupled with the fact that the use of pancuronium bromide masks any outward signs of consciousness, the systemic flaws in the implementation of the protocol make it impossible to determine with any degree of certainty whether one or more inmates may have been conscious during previous executions or whether there is any reasonable assurance going forward that a given inmate will be adequately anesthetized.

I have bolded the language above to emphasize that the judge is saying that the plaintiff has failed to provide evidence to meet his burden of proof. That sounds like he loses, right? Wrong! In the very next sentence — presto change-o! — the burden of proof magically switches! The judge doesn’t admit that’s what he’s doing. But it is:

The responsibility for this uncertainty falls squarely upon Defendants, and the circumstances clearly implicate the Eighth Amendment.

Here’s what the judge is saying: the plaintiff hasn’t proved his case, but that’s because the defendants aren’t keeping good enough records. Accordingly, I’m going to shift the burden of proof to the defendants — but I’m not going to say so, or undergo any sort of legal analysis as to whether this is appropriate.

I want you to clearly understand: the judge doesn’t accuse the State’s representatives of deliberately destroying evidence that they know is relevant to the litigation. That would present a very different situation. Let’s say, to take a hypothetical example, that EKG results are shown to be critical to the outcome of the case. An inmate files a lawsuit and demands production of the EKG results — and the State subsequently disposes of them without ever showing them to the inmate’s lawyers. In such a case, a court might well decide to shift the burden of proof to the State.

But absent unusual circumstances like that, plaintiffs just don’t get to shift the burden of proof to the defendant simply because they don’t like the defendant’s level of recordkeeping.

This exact sort of issue has arisen before in the Ninth Circuit, by the way, in a case that Judge Fogel didn’t bother to cite or discuss. In Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994), the Ninth Circuit sitting en banc considered a challenge to Washington State’s execution protocol, brought by an inmate who faced death by hanging. The inmate argued that the State had failed to conduct autopsies on inmates who had been executed by hanging, which prevented him from making his case that judicial hangings were unnecessariy cruel and painful. The court rejected his argument:

Campbell argues that he should not be saddled with so difficult a burden of proof because there is an extreme paucity of evidence meeting the criteria established by the district court. He asserts that the limitations imposed by the district court leave him with a sample of one, the Dodd execution, with which to prove his case that hanging is unnecessarily painful. We do not agree. First, to the extent that Campbell argues that the State has destroyed or spoliated evidence, he misconstrues the record. The State’s failure, until recently, to conduct autopsies of judicially hanged prisoners is neither the destruction nor the spoliation of evidence. See Akiona v. United States, 938 F.2d 158, 161 (9th Cir.1991) (destruction of records cannot serve as basis for shifting burden of proof absent showing that the party was on notice of the records’ potential relevance to litigation), cert. denied, 503 U.S. 962, 112 S.Ct. 1567, 118 L.Ed.2d 212 (1992). Campbell is not entitled on this basis to shift the burden of proof to the state officials.

The Campbell court further observed:

The risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review.

That court added this observation regarding the plaintiff in that case: “He does argue that witnesses have perceived problems in California executions, but the possibility of unnecessary pain and suffering is purely speculative.”

The evidence discussed in Judge Fogel’s opinion is every bit as speculative. Judge Fogel admits that all he has is “substantial questions” that have not been answered:

As this Court noted in its order of February 14, 2006, anomalies in six execution logs raise substantial questions as to whether certain inmates may have been conscious when pancuronium bromide or potassium chloride was injected. 415 F. Supp. 2d at 1044-46.

The fact that there are questions — even “substantial questions” — doesn’t equate to proof, unless the questions are answered by evidence. And the judge admits that they have not been:

These substantial questions remain unanswered despite the depth and breadth of the evidentiary record and the parties’ briefing. If anything, the questions have become even more substantial.

Previous decisions, such as Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005) have considered similar evidence based on logs like those discussed in Judge Fogel’s decision yesterday, but so far have found such evidence to be insufficient to establish a constitutional violation.

It’s clear from the current decision that the possibility of unnecessary pain and suffering is purely speculative. The only way that Judge Fogel can find his way to the result he reaches is to place the burden of proof on the defendants — in other words, on the State.

So what does Judge Fogel claim is new in this decision, to justify a different result from previous decisions that considered similar evidence? Essentially, he complains about the execution protocol. However . . .


As noted, there is no substantial new evidence that inmates are routinely suffering extreme pain. Instead, the judge presents various complaints about the execution protocol. Many of these complaints are trivial and/or irrelevant, and have no arguable connection whatsoever to the constitutionality of the protocol. The other complaints fall short of constituting proof that the protocol is unconstitutional; at best, they support an argument that the protocol could be improved.

Orin Kerr summarizes it this way:

According to Judge Fogel, the Constitution regulates the procedures used to carry out an execution via lethal injection, including such matters as the lighting, design, and crowdedness of the room in which the execution occurs; the recordkeeping procedures used during executions; the procedures for screening of members of the execution team; and the training and oversight of the team.

There is plenty here that is mockworthy. For example, Judge Fogel here seems to find constitutional significance in whether the State uses blank paper or graph paper in EKG tracings. Sorry, Judge Fogel . . . that doesn’t fly. Nor does it seem plausible that the Constitution addresses the adequacy of the lighting in an execution chamber, or whether the facilities have been “poorly designed.”

I’ll turn over the snark to Beldar, who has an excellent post on the decision:

[D]oes the Eighth Amendment constitutionality of an entire execution system really turn on the difference between graph paper and plain paper in the machine that goes beep?

Or is the lighting in the death chamber really a matter that rises to constitutional import? 60 watt bulb — unconstitutional; 100 watt bulb — constitutional? Is that what the drafters of the Eighth Amendment intended? Or is that even what “evolving standards of decency” require? Surely even a living, breathing Constitution would sneeze at that question!

I came away similarly puzzled by Judge Fogel’s complaints regarding the screening of the individuals involved. For example, Judge Fogel complains that one team leader had been disciplined for smuggling illegal drugs into San Quentin, and that another had post-traumatic stress disorder.

As Beldar says, the judge fails to make “any showing of even a theoretical or likely connection between those grounds and an actual failure of the system to work as intended.”

Some of the judge’s complaints do go the execution protocol itself. But those complaints don’t amount to proof that the protocol is unconstitutional; rather, they merely raise questions.

For example, the judge says that execution team members have admitted to failing to follow instructions for mixing sodium thiopental. But the judge doesn’t explain what instructions weren’t followed, or the significance of that failure to the critical issue of whether inmates are suffering an unconstitutional level of pain. He simply says that the failure to follow the unspecified instructions “complicates the inquiry” on that issue. The fact that an inquiry may be complicated does not excuse the plaintiff from his duty to provide proof.

Similarly vague are the judge’s compaints regarding the “lack of meaningful training, supervision, and oversight of the execution team.” He complains that “the team members almost uniformly have no knowledge of the nature or properties of the drugs that are used or the risks or potential problems associated with the procedure.” But is it necessary that the entire team have such knowledge? Even in surgery, not everyone on the surgical team has full knowledge of all aspects of the procedure and what problems could arise.

So, even assuming that we are going to treat an execution as a medical procedure, where the team must be prepared to deal with every “complication,” why must every team member understand the properties of the drugs? We learn in the course of reading the opinion that a registered nurse mixes the sodium thiopental, and licensed individuals do the I.V. lines. Despite this, there are accidents — but accidents are not unconstitutional.


The judge clearly writes his opinion with the idea that it will make a splash in the media. He therefore says many things that are legally irrelevant, but are there to be quoted. Here is how the opinion opens:

Few issues in American society have generated as much impassioned debate as the death penalty. At one end of the spectrum, abolitionists condemn the intentional taking of human life by the State as barbaric and profoundly immoral. At the other, proponents see death, even a painful death, as the only just punishment for crimes that inflict unimaginable suffering on victims and their surviving loved ones. Even among those with less absolute positions, there are vigorous arguments about the social, penological, and economic costs and benefits of capital punishment.

Any legal proceeding arising in this context thus acts as a powerful magnet, an opportunity for people who care about this divisive issue to express their opinions and vent their frustrations. However, because courts (and particularly trial courts) exist not to resolve broad questions of social policy but to decide specific legal and factual disputes, it is important at the outset for this Court to make very clear what this case is not about.

This case is not about whether the death penalty makes sense morally or as a matter of policy: the former inquiry is a matter not of law but of conscience; the latter is a question not for the judiciary but for the legislature and the voters. Nor is it about whether California’s primary method of execution—lethal injection—is constitutional in the abstract: the arguments and evidence presented by the parties address the specific manner in which California has implemented that method and proposes to do so in the future. Nor is it about whether the Constitution requires that executions be painless: binding precedent holds that the Eighth Amendment prohibits only “the unnecessary and wanton infliction of pain,” Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion), and procedures that create an “unnecessary risk” that such pain will be inflicted, Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004).

Nor, finally, does it somehow involve a comparison of the pain that Plaintiff, a condemned inmate at California’s San Quentin State Prison, might suffer when he is executed with the horrific suffering of the young woman he raped and murdered. The Court has considered seriously the constitutional issues raised by this case not because of some imagined personal sympathy for Plaintiff but because it is its fundamental duty to do so. As a practical matter, there is no way for a court to address Eighth Amendment issues in the capital context other than in a case raised by a death-row inmate; by definition, the acts of which such an inmate stands convicted are viewed by the law and a majority of the community as so abhorrent as to warrant the ultimate penalty. Lest there be any doubt, this Court has the most profound sympathy for the family and loved ones of Plaintiff’s victim.

Virtually every word of that is unnecessary to a legal opinion.

Perhaps some will find the judge’s concern for the public’s approval touching — he wants the common man, untrained in the legal profession, to understand the opinion, since it has great significance. I just find it annoying. I think justice should occur the same regardless of whether a media spotlight is placed on the proceedings or not, and I always get annoyed when judges write opinions with an eye to being quoted in the newspaper.

Don’t get me wrong. I’m happy to have judges write opinions that can be easily understood by the public. Alex Kozinski is great at that. But it just bugs me to have a judge plead for the reader to understand that he cares about the victim, to take one example. We know that, judge. And the type of people who think otherwise aren’t going to read your opinion anyway .

Ah, but they might read the quote in the newspaper. And that’s what the above passage is all about.

Worse still, the judge relies on articles in the New York Times and Los Angeles Times as support for his decision. Footnote 10 reads:

Cf., e.g., California: Official Admits Execution Was Bungled, N.Y. Times, Sept. 27, 2006, at A21 (“A state official admitted that prison guards had bungled the execution of the gang leader Stanley Tookie Williams last December . . . at a federal court hearing in San Jose on lethal injection.”); Maura Dolan & Henry Weinstein, The Chaos Behind California Executions: Trial Testimony Paints Lethal Injection Methods as Haphazard, with Little Medical Oversight, L.A. Times, Oct. 2, 2006, at A1. Even Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation and one of the strongest advocates of the death penalty in California, has recognized that California “is legitimately criticized for not doing enough homework on the protocol.” Quoted in Henry Weinstein, State Will Help Shape Fate of Lethal Injection: The Morales Case Gives California a Key Role in a National Debate Over the Method’s Humaneness, L.A. Times, Feb. 23, 2006, at A1.

Courts should not rely on newspaper articles as evidence. Henry Weinstein, whose work is cited twice in the aforementioned footnote, is a liberal fellow who (I have no doubt) opposes the death penalty. I have documented his bias on this site for years. To rely on him to relate fully and accurately what Kent Scheidegger thinks of California’s death penalty is, at a minimum, naive.

Judge, if you want to learn what Kent Scheidegger thinks about California’s death penalty, have him brought to court and examined by both sides. Don’t rely on the L.A. Times to tell you, for Pete’s sake.

Ultimately, this footnote is symptomatic of the flaws of the whole decision, as the judge has made himself a pawn for complaints raised by well-meaning liberals, without providing the independent legal analysis that we have a right to expect from a neutral judge. The plaintiffs’ attorneys have raised many issues regarding the professionalism of the execution protocol, and argued that they are imbued with constitutional significance — and the judge fell for it. The plaintiff’s attorneys argued that they couldn’t possibly be asked to actually prove their case — and the judge fell for it. Just like the judge was told certain “facts” by the New York Times and L.A. Times — “facts” that may or may not be true, and certainly have not been proved in court — and the judge fell for it.

As I said, I’m not impressed.

Ultimately, however, the decision will probably not be overturned. As Beldar argues, the points raised by the opinion are so picky that it’s probably just easier for the state to simply cure the flaws of which the judge complains. Maybe, in the end, the state will opt for the judge’s preferred solution of an overdose of barbiturates. Maybe they could take a suggestion from me and Dafydd ab Hugh and simply change the law to have a firing squad. I don’t particularly care, one way or the other. I just want guilty murderers, who have been lawfully condemned to death and have been through all their appeals, to get a speedy execution, without the kind of legal nonsense I see in Judge Fogel’s opinion.

17 Responses to “An Analysis of Judge Fogel’s “Memorandum of Intended Decision” Regarding California’s Lethal Injection Protocol”

  1. Correct me if I’m wrogn but the judge — and the entire criminal justice system — is there to serve th public, right? And the public is compiosed of considerably more persons than those who can be counted as legal adepts, correct? And where is the public most likly to learn of this decision.

    The newspapers.

    Believe me, I find it all confusing too. I was under the impression that “cruel and unusual punishment” was the issue at had, is it not? But then how is that to be gauged vis-a-vis the death penalty? Have there been prior studies and evaluations of methods of execution that might be consulted?

    David Ehrenstein (af13fc)

  2. The complaints about lethal injection, aside from opposition to the death penalty at all, have been, as I understand it, about trouble starting an IV in people with a heavy history of drug use that has obliterated all their veins. There is a perfect solution for this; the gas chamber. “Nough said. It’s quick, does not require sticking the prisoner to start an IV and is painless.

    Mike K (b30d3b)

  3. The judge’s decision refers to the possibility inmates “may have been conscious when pancuronium bromide or potassium chloride was injected”… but does being conscious equate with undergoing pain?

    How and where does one draw the line at how much pain an inmate is constitutionally allowed to suffer before the process is declared unconsitutional? And as some individuals have higher thresholds than others, would a universal limit be allowed or would the state need to establish for each inmate a personal maximum level of pain they could be subjected to?

    And what would be the standard for determining how likely an inmate was to suffer in order to invalidate all injections? Whether by accident, a mistake in following directions or a individual having a high tolerance for pain, just because one executed inmate might have been conscious and may have suffered some amount of pain and may have suffered at a level deemed unconstitutionally high for him, it doesn’t mean that every inmate would suffer the same fate. Would and ought such an anomaly be sufficient to invalidate the process for all?

    steve sturm (d3e296)

  4. Good grief. Just go back to the guillotine or good old fashioned hanging.

    Whatever physical discomfort the condemned feel is surely secondary to the fact that they’re dying. I wouldn’t approve of deliberately selecting slower and more painful methods of execution, but I don’t see why we need to be sure that our executions are as painless as possible. Apparently all the money and studies that have been thrown executions in that misguided quest haven’t done a whole lot of good, so why bother?

    Seneca (7e8faa)

  5. P.S. I am not inclined to be as kind to Judge Fogel as our host is. He has found a helpless human being over whom he has power of life and death and is playing with the method by which he should die. What reason do we have to believe that anything Judge Fogel is doing is in good faith? That he does not have delusions of grandeur that make him want to be the one, and not the State of California, that decides Morales’s mode of execution? When the rule of law is replaced by the whim of man …?

    nk (8214ee)

  6. More from the liberal activist judges who make such stupid and rediclous rulings its time to remove them all from the bench

    krazy kagu (d0aa80)

  7. Nor are these sort of questions answerable. In fact, any attempt at answers only produces more questions.

    It’s kind of like the creationist observation every time a “missing link” is discovered: instead of closing a “gap” in the fossil record, they now point to TWO gaps.

    In this case, additional records or additional measurement will only satisfy IF they support the “anti” position. Otherwise the state isn’t doing enough, because obviously the evidence should support the “anti” position — and failing to find it is simply more malfeasance on the part of the state.

    Or so a Judge Fogel would no doubt find.

    Kevin Murphy (0b2493)

  8. I’m not a lawyer and don’t play one on TV. But it’s apparent to me that the Constitution no longer means “cruel and unusual” when it says “cruel and unusual”; it means “a crapshoot based on whatever judge happens to hear your case doesn’t like.” Of course, that’s how I perceive the court system in general, as a process that’s governed less by rules than by good lawyering and judicial whim.

    diffus (59c6dd)

  9. Well what does “cruel and unusual” mean anymore anyway when the Bush administration has signed off on torture?

    David Ehrenstein (af13fc)

  10. Botched execution causes Fla. to suspended all…

    Florida Lethal Injections, Murders Put on Holdby Scott Ott (2006-12-16) — After a botched execution that took 34 minutes to end a convicted murderer’s life, Florida Gov. Jeb Bush has suspended all death sentences until a commission can review letha…

    Bill's Bites (72c8fd)

  11. it was a weak opinion. i grinned at the sentence between pages 16-17, removal of the pancuronium bromide and potassium chloride from the protocol would resolve any constitutional objections as long as there was an adequate and verifiable method of determining whether the inmate actually received a lethal dose…grinning again just thinking about this.
    if his heart hasn’t beaten once in five minutes, and he hasn’t taken a breath during this time, hold a cigarette lighter to his earlobe. no twitchee? that means you can all go home.

    assistant devil's advocate (385354)

  12. I think the judge is trying to articulate a sort of cumulative error here; I think more of the opinion than Pat does, though I share most of his concerns.

    I will say, though, that judges have been putting in language that’s designed to get the attention of non-legal readers for a while. I believe the Roberts opinion on the 12 (?)-year-old girl in the subway who was handled stupidly by the DC transit cops had a passage about how the court didn’t really view jailing 12-year-olds over food as a brilliant idea, just a constitutional one. Given the rather more pernicious dishonesty in some no-execution opinions, I can’t fault Fogel for clarifying his position publicly.

    (My view on the merits is pretty close to Pat’s; it looks to me like there isn’t a constitutional failure in California’s executions, so while I’d like to see some of the cleanups suggested by Judge Fogel, I don’t think it’s the court’s place to do this.)


    JRM (100b19)

  13. Would the Supreme Court Agree With Judge Fogel’s View of the 8th Amendment?:…

    In a memorandum handed down on Friday, Judge Fogel of the Northern District of California concluded that the Eighth Amendment requires relatively careful judicial scrutiny of how t……

    The Volokh Conspiracy (fa8fba)

  14. Dude. Trackbacked by Orin Kerr. Rock and roll, baby.


    JRM (de6363)

  15. [Tongue inserted in cheek here] Well, at least we can all rest assured that the Ninth Circuit will overrule this opinion.

    Hick Funn (c03022)

  16. Jessie…

    I just love what you posted. Gimme more!…

    Jessie (7fbcbf)

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