Patterico's Pontifications

2/23/2009

L.A. Times Falsely Claims a Judge Has Imposed a Moratorium on Executions in California

Filed under: General — Patterico @ 9:55 pm



The L.A. Times gets it wrong yet again:

State officials predict the execution procedures could be approved by a state panel in six months to a year, clearing the way for a federal judge to lift a moratorium on executions. . . . U.S. District Court Judge Jeremy Fogel of San Jose imposed the moratorium Feb. 21, 2006, when he stayed the execution of convicted murderer Michael Morales.

No, he didn’t. He 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.

But the state didn’t do that. Nor did it subscribe to the solution offered by myself and Dafydd ab Hugh: changing the law to permit hanging or a firing squad.

Instead, the state has worked on changing its protocol. In the meantime, there has been a de facto moratorium — but only because the state hasn’t pushed the issue to the mat in the courts.

Let’s be clear. During this period of time, the Attorney General’s Office has been asking judges not to sign death warrants because they assume the executions will be stayed, and they don’t want to force the warden at San Quentin to gear up for an execution (an involved and costly process) that they believe will be stayed. I know this from firsthand experience. It’s a long story and I’m not going into it — but trust me: this is what they’re doing.

Frankly, I don’t think the state’s lawyers should refuse to take an action because they suspect that a judge will illegally move to block that action. My theory is: if your action is lawful, then take the action, let the judge make his crap ruling, and appeal it. Stand up and do what’s right. But that’s not what the Attorney General’s Office has chosen to do.

So no, L.A. Times, Judge Fogel didn’t impose a moratorium. The state has imposed its own, by backing down on the legal fight.

UPDATE: Well, that was quick. There’s now a correction:

FOR THE RECORD: An earlier version of this article said U.S. District Judge Jeremy Fogel imposed a moratorium on executions in California. Fogel issued a ruling that led to the state’s moratorium.

The passage now reads:

U.S. District Judge Jeremy Fogel issued a ruling that led to the state’s moratorium on Feb. 21, 2006, when he effectively stayed the execution of convicted murderer Michael Morales.

Accurate enough, in a highly technical sense.

35 Responses to “L.A. Times Falsely Claims a Judge Has Imposed a Moratorium on Executions in California”

  1. CA has an Attorney General?
    When did this happen?
    Next thing you’ll try to tell us is that the Governor is an action-hero!

    AD - RtR/OS (9ed43c)

  2. well hell’s bells!,I wish they would feel this way about abortion!.

    mr. falcone (eed2b3)

  3. Judge Fogel may well be as dead wrong, and sloppy, as Pat says he is on drafting the decision, or non-decision?, but I give him MAD PROPS for the injection ruse.

    Made my day!

    Hax Vobiscum (23258e)

  4. It’s not a bad thing that California is redoing the protocol. Fogel makes a crappy case that it’s unconstitutional, but a decent case that it’s unprofessional.

    Patterico (cc3b34)

  5. Nitrogen Asphyxiation.

    Wickedpinto (a69e7e)

  6. A long time ago in England there were judges and courts and juries. There were also powerful groups that worked behind the scenes to get what they wanted from particular judges. Eventually, the intimidation and favoritism came out in the open and you could tell which way the judge was going to rule by looking at the size of the armies camped outside the courtroom. The breakdown of the legal system was one of the factors which led to what we now call “The War of the Roses”.

    I pray our hyper-partisan politicians can keep their politics out of the court room and help us get a less bias legal system before it is too late. The War of the Roses led to the bloodiest battles fought on English soil. Not a comforting thought.

    tyree (99cbce)

  7. Tyree, our own war of the roses has begun between those capable of rational thought and the liberal Democrats. Which side will ultimately win is in the air.

    GM Roper who really, really would like to see DRJ posting or even commenting here again.

    GM Roper (85dcd7)

  8. I’m against capital punishment, but I’m also against these games being played. Either declare it illegal or follow the law.

    carlitos (ebd4ab)

  9. Pat,

    I look forward to the day the OC Register joins the LA Times on your hold accountable list. They have become just as bad.

    Stan Switek (7cfd24)

  10. I don’t know the particular offense the Register committed to merit mention. Possibly it has something to do with their decision to stop doing their own reporting. Just about everything in the paper, except their loopy editorials, was material purchased from another service, much of it from the NY Times by the time I quit my subscription.

    Mike K (90939b)

  11. Very true, GM.

    Lincoln and many others have said that when we fail, it will be from within.

    I agree with Carlitos, the “Culture of Corruption” has been ignoring the enforcement of the law for a very long time. If they don’t want to enforce something, then they should convince us to change it. In the meantime, obey it.

    tyree (99cbce)

  12. Isn’t it sad that Hacks is paid to publish the written word?

    JD (ad7346)

  13. JD, I have no idea to whom you refer. Nor do you, I”m guessing.

    Eric Blair (9671e0)

  14. Eric – That was simply a thought that passed through my head, and magically appeared on this website. I need to check the software on my notebook, and the tinfoil antenna.

    JD (ad7346)

  15. How about them Seahawks, JD?

    Eric Blair (9671e0)

  16. The Seahawks should sign Marvin Harrison.

    JD (ad7346)

  17. Aren’t the Seahawks a JuCo team?

    “My arm is 60 pc. I now throw like Brian Sipe.”

    John Hitchcock (fb941d)

  18. Brian Sipe

    Point taken, but I still remember his glory days with San Diego State during the Coryell era. The Friday night skies were filled with footballs, as one might imagine with those two involved. Most runs at the time were limited to between the sideline and the huddle, or after catches.

    allan (7916a6)

  19. Patterico,

    Is this a case of a judge trying to set some form of (extra)legal precedent without actually ruling in a death-penalty case? That is, is he hoping that other judges will cite his “memorandum” as precedent in their own cases as a basis for ruling the dealth penalty a violation of the 8th Amendment and in so doing legally outlaw it? Or are the courts restricted to citing actual rulings, as opposed to “memoranda of intent to rule” such as this?

    I walked through the UNM Law School for the first time today – I needed to use their library. I feel silly saying this, but it was kinda cool just being there. Law is interesting stuff.

    Leviticus (b987b0)

  20. Leviticus – I believe this is the judge’s way of placing people on notice of his “intent” to find things unconstitutional, so they will no longer attempt to do things. That way, he can avoid actually having to rule on it, and get overturned. It seems like he is banking on the State not having a spine, and so far, has been proven correct.

    JD (ad7346)

  21. Well, I am still looking for work!

    Jack Kevorkian, MD (3e4784)

  22. If we’re picking nits, Pat, ain’t the correction as bad as the original? I mean:

    U.S. District Judge Jeremy Fogel issued a ruling that led to the state’s moratorium on Feb. 21, 2006, when he effectively stayed the execution of convicted murderer Michael Morales.

    There’s still no moratorium, if I read you correctly. Why not go with the original plus the bolded:

    U.S. District Court Judge Jeremy Fogel of San Jose effectively imposed a moratorium Feb. 21, 2006, when he stayed the execution of convicted murderer Michael Morales.

    You’d still have the technical problem of the execution not having been stayed, but at least the de facto nature of the “moratorium” would be captured—and that seems the more important of your objections. (I’m not arguing here, just seeing whether or not I understood the objection.)

    SEK (072055)

  23. SEK, the dude didn’t issue a ruling. The dude didn’t impose a moratorium. And you are arguing, despite your desperate denials. (Isn’t denial a river in Africa?)

    John Hitchcock (fb941d)

  24. I can’t see SEK without thinking Swedish Kronor.

    carlitos (ebd4ab)

  25. #12 JD
    Isn’t it sad that Hacks is paid to publish the written word?
    He is? Tell me the sad story, please. I’ve missed this.

    m (062a88)

  26. the dude didn’t issue a ruling. The dude didn’t impose a moratorium.

    Which is why, in that amended second quotation–in the bolded part, no less–I indicate the de facto quality of the imposition. No ruling, no moratorium, merely a statement that effectively functions as a moratorium.

    You’re also a terrible reader: the first italicized bit in my comment is the paper’s correction, the second what I think would be the improved version if I understood Pat correctly. In other words, I’m not saying he issued a ruling–in fact, I’m taking issue with that fact by rewriting the second italicized bit as I did.

    You, on the other hand, ought to see someone about your knees. That’s more than a flinch you have there.

    SEK (072055)

  27. Comment by SEK — 2/24/2009 @ 4:04 pm

    Get thee behind me, Satan.

    John Hitchcock (fb941d)

  28. I’ll take that detailed refutation as evidence you’ve accepted that, in bad faith, you misunderstood my point and mischaracterized my intent.

    SEK (072055)

  29. Hi, SEK! How are you doing? California is funny, no? What with its moratoriums what aren’t moratoriums and its spending cuts what aren’t spending cuts. A man has to keep his wits about him. Are you professoring anywheres yet?

    happyfeet (71f55e)

  30. Nope, but I’m available for all your adjuncting needs, wherever they may be, so long as they pay in money.

    SEK (072055)

  31. I am very well-adjuncted for now, but it really is good to see you. A lot has changed since this time last year, seems like. If you believe what you read in the papers, anyway. You should come see us at the PW more cause we’ve an awful dearth of progressive opinion what’s at all insightful.

    happyfeet (4eacbc)

  32. #10, Mike, you obviously have not read anything by Octomom, homeless, gangster, illegal alien loving Yvette Caberra or you would not be asking.

    In addition to that, on the front page today, OC Sheriff Sandra Hutchins was referred to as a former LAPD administrator. It’s well known that Hutchins was a member of the LA Sheriffs department. So much for accuracy.

    Stan Switek (941d0f)

  33. SEK,

    I tried commenting on this earlier but I guess my phone crapped out. Here’s what I said:

    First I asked John why he was getting all over your case when you were just asking a question.

    Then I said this to you:

    I think that saying the judge stayed the execution would still be seriously mistaken. What he did was, in a passive aggressive way, he stopped executions from happening while being able to claim that he didn’t mean to. Anyone would realize that what he required wasn’t possible.

    I thought the LAT did a decent job on the correction (and damn quick, too! almost as if it was prompted by my post, huh?) given the need for brevity.

    But I think the state’s informal moratorium (and there is one) is a story in itself. I broadly hinted at this by referencing my own story. It’s an interesting story, I think, but I’m still mulling over whether I feel comfortable telling the whole story on the blog.

    Patterico (cc3b34)

  34. But I think the state’s informal moratorium (and there is one) is a story in itself.

    That’s what I thought, and I agree. (This is me swimming in denial, a river in Egypt, you know.)

    SEK (072055)

  35. SEK, I was busy playing “whack-a-mole” yesterday and mistook you for another mole. I apologize.

    John Hitchcock (fb941d)


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