I think newsday is owned by the Onion, but I'll have to ask John Bradley about that.

Neville v. Johnson
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

Robert James Neville appeals the dismissal of his action seeking injunctive relief and a stay of execution under 42 U.S.C. � 1983. He alleged that a particular lethal injection protocol as well as related procedures violate the Eighth and Fourteenth Amendments of the Constitution. The district court dismissed Neville's action because he was dilatory in filing his action for equitable relief. We AFFIRM.

A challenge to a method of execution may be filed any time after the plaintiff's conviction has become final on direct review. White v. Johnson, 429 F.3d 572, 574 (2005). Neville's death penalty conviction was affirmed by the Texas Court of Criminal Appeals in 1999. Neville then waited until two days before his scheduled execution to file a method of execution challenge with the district court. He, therefore, "'delayed unnecessarily in bringing his claim.'" Harris v. Johnson, 376 F.3d 414, 416 (5th Cir. 2004) (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)).

A cognizable � 1983 claim ""does not warrant the entry of a stay as a matter of right."" See White, 429 F.3d at 573 (quoting Nelson, 541 U.S. at 649). Rather, this "court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief." Id. In addition, the court may consider the last-minute nature of all types of equitable requests, including permanent injunctions. See id. at 574. This court "'must take into consideration the State's strong interest in proceeding with its judgment and . . . attempts at manipulation.'" Id. (quoting Nelson, 541 U.S. at 649) (alteration in original).

Neville offers no excuse for delaying his claim until the last minute, and, therefore, we find it improper to grant the equitable relief he seeks. Although the Supreme Court has granted a writ of certiorari in Hill v. Crosby, 05-8794, -- S.Ct. --, 2006 WL 171583 (Jan. 25, 2006), "our precedent . . . remains binding until the Supreme Court provides contrary guidance." In re: Elizalde, No. 06-70002 (5th Cir. Jan. 31, 2006) (citations omitted). Therefore, we AFFIRM the district court's dismissal of Neville's claims.

Smith v. Johnson
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

The plaintiff-appellant, Clyde Smith, Jr. (Smith), is scheduled to be executed on February 15, 2006. Smith appeals the district court's dismissal of his suit seeking injunctive relief pursuant to 42 U.S.C. � 1983. He alleged that the particular method of execution used by Texas, lethal injection, causes excruciating pain during an execution in violation of the Eighth Amendment. The district court dismissed the complaint with prejudice, concluding that Smith had failed to provide a reasonable justification for his delay in bringing the Eighth Amendment challenge to method of execution. The district court expressly recognized that it did not have to determine whether the Eighth Amendment claim is cognizable under � 1983 because Fifth Circuit precedent holds that Smith is not entitled to equitable relief due to his dilatory filing.

The district court correctly applied our precedent. This Court has held that "[a] challenge to a method of execution may be filed any time after the plaintiff's conviction has become final on direct review." Neville v. Johnson, __ F.3d __, 2006 WL 291292 (5th Cir. Feb. 8, 2006) (citing White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005)). Further, we have made clear that waiting to file such a challenge just days before a scheduled execution constitutes unnecessary delay. Harris v. Johnson, 376 F.3d 414, 417-19 (5th Cir. 2004). Although Smith's direct appeal has been final for more than nine years,*fn1 he did not file the instant complaint until five days before his scheduled execution. Smith "cannot excuse his delaying until the eleventh hour on the ground that he was unaware of the state's intention to execute him by injecting the three chemicals he now challenges." Harris, 376 F.3d at 417. Whether or not Smith properly states a claim under � 1983, he is not entitled to the relief he seeks due to his dilatory filing. Smith has been on death row for more than nine years but decided to wait to challenge a procedure for lethal injection that has been used by the State during his entire stay on death row. See White, 429 F.3d at 574 (reaching the same conclusion when petitioner filed after six years); see also Harris, 376 F.3d at 417. Nonetheless, Smith contends that he has not delayed in bringing suit because his execution was not scheduled until September 9, 2005. Smith concedes that our very recent ruling in Neville, 2006 WL 291292, is "adverse" to his claim. Smith offers no other reason for the delay. Neville controls and requires us to affirm the district court's dismissal of this claim.

Smith also asks this Court to stay the execution pending the Supreme Court's decision in Hill v. Crosby, 05-8794, 2006 WL 171583 (Jan. 25, 2006) (granting certiorari), a case also involving a challenge to the method of execution. In Neville, we declined such an invitation, explaining that Fifth Circuit precedent "remains binding until the Supreme Court provides contrary guidance." 2006 WL 291292 at *1 (citation omitted). Moreover, the questions presented to the Supreme Court concern whether an Eighth Amendment claim is cognizable under � 1983 or should be construed as a habeas corpus petition under 28 U.S.C. � 2254. Our precedent has not reached these questions; instead, we have denied equitable relief based on the dilatoriness of the filing.

Accordingly, for the above reasons, we AFFIRM the district court's dismissal of Smith's complaint and DENY the motion for stay of execution.

Opinion Footnotes

*fn1 Smith v. State, No. 71,800 (April 3, 1996) (unpublished).

The defendant in the California case waited a lot longer than these Texas defendants. So, why does that case get heard?

I'm guessing that in no way shape or form have any of these motions included any suggestion of alternate, more acceptable, friendly means of execution?

JMH,

Why should that matter? In California, they offered two suggestions. The judge took them up on it and they promptly started complaining about those methods too!

doesn't matter in the least. Just making fun. Sort of like saying that looks painful. Would much rather you kill me by dropping feathers on me or something. Personally, I could care less if they lay them on the train tracks.

JMH,

I was being sarcastic in kind, which is always hazardous in a written format. But yes, it seems ridiculous that all that's needed these days is just to pick, pick, pick without ever even being asked to offer a constructive suggestion! Perhaps we should start offering alternatives:

"I, this here convicted murderer, do hereby choose my manner of death to be:
( ) Beaten with a feather
( ) Licked by puppies
( ) Chocolate overdose"

(And that's more sarcasm, if it needs to be identified. I wouldn't waste good chocolate like that!)

If it sped things up, I wouldn't really call it a waste. In fact, take mine.

State's chief justice says lack of funding has led to de facto moratorium on executions.

From the Associated Press
May 1, 2006

SAN FRANCISCO � The chief justice of the California Supreme Court said the state's death penalty has become "dysfunctional" and blamed lawmakers for looking the other way as 650 condemned inmates idle on death row.

Ronald George said in an interview with the Associated Press that the Legislature's inability to adequately fund capital punishment has led to a de facto moratorium on executions in California.

"I think that there are many, many things in the eyes of legislators that have greater priority," said George, who marks his 10th anniversary as chief justice today. "That's the problem. People want to have the death penalty, but they don't want to pay everything it costs to have it implemented in a judicious manner."

Although California has the nation's largest death row, there are no executions in sight as a federal judge considers whether the three-drug cocktail used to put inmates to death in the state is unconstitutionally cruel.

A formal death penalty moratorium proposed by some lawmakers failed to get out of an Assembly committee in January. The Legislature's only recent action has been to approve $223 million last year for a new and larger death row with 768 cells.

Lawmakers seem to want it both ways, George said. Like a majority of their constituents, they publicly support the death penalty. But their inactivity has contributed to the malaise that leaves death row inmates languishing for decades at San Quentin State Prison.

"The system is very dysfunctional," said George, a 66-year-old Republican who was appointed in 1991 by then-Gov. Pete Wilson and elected chief justice on May 1, 1996.

But while he pointed the finger at Sacramento, some lawmakers said George has done little to relieve the backlog.

"He's not said, 'It's going too slow, we need more money to speed it up,' " Assembly Budget Committee Chairman John Laird (D-Santa Cruz) said of George.

But others say George has a point.

"Everyone wants to say, 'I support the death penalty,' but they also say, 'It's OK to have a de facto moratorium,' " said Assemblyman Joe Nation (D-San Rafael), who opposes capital punishment. "It's a boondoggle."

George would not say how much money he thinks is needed, but ticked off a wish list of programs he'd like to see funded.

He said the Supreme Court needs several new staff attorneys to process the capital cases, many of which involve thousands of pages of transcripts. He also wants lawmakers to increase hourly payments to lawyers handling capital appeals, as the condemned usually wait years before counsel is appointed.

Gov. Arnold Schwarzenegger's spokeswoman, Margita Thompson, said the governor strongly supports the death penalty and would be willing to entertain proposals to speed up executions.

"The governor would support ways to make the system more efficient and responsive to victims that would not jeopardize the integrity of the legal review process," Thompson said.

Since California voters reinstated capital punishment in 1978, 13 inmates have been put to death. Meanwhile, four times as many condemned prisoners have died of natural causes, suicide or in homicides. By comparison, Texas, the nation's most frequent executioner, has carried out at least 355 killings in roughly the same period.

George said it's up to the people and their elected officials to decide whether or not they want to continue having a death penalty in California.

"This court has upheld the constitutionality of the death penalty," he said. "If California wants a death penalty, we need to ensure adequate funding so we don't have these terribly long delays that are a disservice to the administration of justice."

http://www.latimes.com/news/printedition/california/la-me-chief1may01,1,5250127.story?coll=la-headlines-pe-california

quote:

---

Since California voters reinstated capital punishment in 1978, 13 inmates have been put to death. Meanwhile, four times as many condemned prisoners have died of natural causes, suicide or in homicides. By comparison, Texas, the nation's most frequent executioner, has carried out at least 355 killings in roughly the same period.

---

Wonderfull backhanded compliment to Texas. We get our "killing" done fast.

Interesting article on California's defense of lethal injection

http://www.latimes.com/news/local/la-me-lethal10nov10,1,1069280.story?coll=la-headlines-california

Here's a transcript of the hearing

http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection%20Documents/California/Morales/Morales%20Dist%20Ct/Evidentiary%20Hearing/2006.09.26%20Morales%20Evidentiary%20Hearing.txt

http://www.law.berkeley.edu/clinics/dpclinic/Lethal%20Injection%20Documents/California/Morales/Morales%20Dist%20Ct/Evidentiary%20Hearing/2006.09.28%20Morales%20Evidentiary%20Hearing.txt

Although I doubt California will change, this proposal to shift more of their DP appeals to the lower appellate courts points out why death penalty opponents in Texas have tried to shrink the pool of lawyers qualified to handle those cases and also abolish the CCA (rolling its duties into SCOTX). Simply put, those mechanisms have ground the death penalty to a halt in California, and they would do the same here if implemented. Food for thought ...

LA Times article

California's high court seeks death penalty fix

Justices propose to deal with the massive backlog by allowing case review to be transferred to lower courts.

By Henry Weinstein, Los Angeles Times Staff Writer
November 20, 2007

The California Supreme Court on Monday called for a constitutional amendment to ease the backlog in the state's death penalty system, which takes an average of 17 years to execute a condemned convict -- twice the national average.

The amendment would permit the state's high court, which has had exclusive oversight of capital appeals since California became a state in 1850, to transfer review of some death penalty cases to lower courts. Chief Justice Ronald M. George, who announced the proposal, said he wanted the Legislature to put the amendment on the November 2008 ballot.

The system's delays and ensuing backlogs are bad for the condemned inmates, prosecutors and the public interest "in finality and enforcement of the law," George said in a phone interview Monday.

Currently, the state's seven Supreme Court justices spend about 20% to 25% of their time and resources on capital cases, he said. The "ever-increasing backlog . . . threatens to overwhelm the Supreme Court's docket," George said.

The proposal follows a small but significant chorus of voices calling for change in what they describe as a "dysfunctional" system that renders capital punishment as little more than an illusion.

The state has the nation's largest death row population, with 667 inmates -- 652 men at San Quentin and 15 women at the Central California Women's Facility in Chowchilla -- but only a few have exhausted their appeals, which can last decades.

California has executed 13 inmates since capital punishment was reinstated in 1978. In the meantime, more than 50 condemned prisoners have died of old age, suicide or prison violence.

The state would have to execute five prisoners a month for the next 11 years to clear inmates now on death row. And the backlog is likely to grow: Thirty people have been on death row more than 25 years, 119 for more than 20 years and 408 for more than a decade.

However, the Supreme Court's proposal drew immediate caveats and some opposition.

State Senate Majority leader Gloria Romero, a Los Angeles Democrat who is a death penalty critic, said she told George that the Legislature would give the proposal "serious consideration."

However, she emphasized that if the state was going to amend the Constitution, officials should seize the opportunity to "make a comprehensive assessment of the fairness and adequacy of resources of the death penalty system in California."

"If we are going to move forward on a major change in California, there has to be a lot on the table," including the possibility of narrowing the criteria for seeking the death penalty so that fewer cases would qualify, Romero said.

Veteran federal appeals court Judge Arthur L. Alarcon, who urged a shift in death penalty appeals to lower courts in an influential law review article earlier this year, said he was pleased that his ideas were getting serious consideration.

He emphasized, however, that the state's death penalty machinery was unlikely to work more effectively unless the state dealt with a critical shortage of defense lawyers to represent death row inmates on appeal.

"Without raising the pay for lawyers, without providing more funding to do adequate investigation" of the cases, "there are still problems," said Alarcon, of the U.S. 9th Circuit Court of Appeals.

The proposal is expected to get its first public hearing on Jan. 10 at a meeting of the California Commission for the Fair Administration of Justice at the state Capitol. George and Alarcon are scheduled to speak at that session, and it is anticipated that other proponents and opponents also will be on the agenda.

Santa Clara University law professor Gerald Uelmen, the commission's executive director, said he had serious concerns about the "tremendous impact" the proposal could have on the state-funded agencies that represent death row inmates. "They will need a lot more staff," and that will be costly, he said.

George said he and the other justices have been wrestling with the backlog issue for months. He said change was needed because the Supreme Court's resources had not expanded to match "the growing number of defendants sentenced to death in California."

He said the California Supreme Court rules on about 20 death penalty cases a year. If the amendment passes, the Supreme Court would transfer about 30 capital cases a year to the state's intermediate-level appellate courts, which are headquartered in Fresno, Los Angeles, Sacramento, San Diego, San Francisco and Santa Ana.

Currently, there are 105 state appeals court justices. If the plan is adopted, each would have to write a death penalty opinion once every 3 1/2 years, not a substantial increase in workload, George said.

The Supreme Court would retain those cases that involve a new legal issue or clearly would have statewide impact, while distributing others that could be resolved based on existing law.

George said the state Supreme Court had decided about 400 death penalty cases over the last 30 years. He said those rulings plus "numerous decisions" by the U.S. Supreme Court "have settled the vast majority of legal questions concerning capital litigation as presently practiced in California," and would provide considerable guidance to the state appeals courts. The state high court would retain the right of final review, he said.

George acknowledged that the vast majority of the 38 states that have a death penalty statute provide for automatic direct review by the state court of last resort. But, he said, most of the states have relatively few death penalty judgments each year, and the cases "do not pose a substantial burden on those state supreme courts."

Death penalty trials and records are substantially bigger in California, the briefing schedules stretch four to 10 times longer, and the reviewing court's opinions are longer and consume more time and resources, George said.

James A. Ardaiz, the presiding administrative justice of the 5th District Court of Appeal in Fresno, said he thought that the proposal was "thoughtful" and "a recognition of the fact that under the current Constitution the Supreme Court has become so impacted it cannot effectively carry out the expectations of the public in terms of the efficient implementation of the law. I look forward to helping the court alleviate its backlog."

Judith McConnell, chief administrative justice of the 4th District Court of Appeal in San Diego, said she believed that most of the chief appeals court justices "generally support the proposal provided that we are given adequate resources to handle the increased caseload."

"The state Supreme Court has a central staff for death penalty appeals. It is my understanding that it takes a number of months for those staff attorneys to work the cases up" before the court considers them, McConnell said. "We would need additional staff."

McConnell said she definitely had concerns about how the state Supreme Court would allocate the cases it transfers.

She said the appeals court in San Diego already was considering a number of appeals, involving other types of cases, from San Bernardino and Riverside counties, where court dockets have swelled significantly because of rapid population growth.

Staunch death penalty advocate Kent Scheidegger, of the Criminal Justice Legal Foundation in Sacramento, said he "has long favored an added role for the courts of appeal in capital cases," in part because "the bulk of issues considered by the Supreme Court are routine."

However, he said he was "leery of allowing two judges of a three-judge panel to overturn a capital sentence with no further right of review" for the prosecution.

He said the high court should have to review decisions that overturn death sentences unless they are unanimous.

The California Attorneys for Criminal Justice and the chief death penalty lawyer for the American Civil Liberties Union of Northern California said the proposal did not address what they consider the major problem underlying the current backlog -- a lack of qualified defense attorneys who are willing to take death penalty appeals under existing pay scales.

Veteran death penalty attorneys James Thomson, of Berkeley, and Lynn Coffin, of Mill Valley, both said the organization believes the proposal "is a constitutional step backward."

They said the organization's position is that "the highest punishment deserves review by California's highest court. This proposal is a significant departure from California's constitutional guarantee that every person facing government-ordered execution should have his/her case heard by the highest court in the state."

It takes a two-thirds vote of the state Legislature to put a proposed constitutional amendment on the ballot, and a simple majority vote by the electorate for passage.

Always good for material with which to scare true lovers of law and order, like most of the good people on this forum.

Case in point: Here's what happens when you create a "Commission on the Fair Administration of Justice" -- they use their power to do discovery for defense attorneys ...



Lawyers divided on death penalty system

Prosecutors and defense attorneys tell a state panel that the system is dysfunctional but differ on solutions.

By Henry Weinstein, Los Angeles Times Staff Writer
February 21, 2008

Defense lawyers and prosecutors agreed Wednesday that California's death penalty system was deeply troubled but split over the causes and solutions.

During a hearing in Los Angeles before a state reform commission, prosecutors called for quicker appeals and amending the state Constitution to permit the California state Supreme Court to transfer some of the initial review of cases to state appeals courts.

Defense attorneys opposed the proposal, saying it would make the process more cumbersome.

Instead, they asked that the state pare the list of crimes that qualify for the death penalty and provide more funding for lawyers who represent accused killers.

[snip]

Before the hearing, two professors from Pepperdine Law School attempted to survey district attorneys around the state to learn how they decide when to seek the death penalty. But they met with little cooperation.

[snip]

For the full article, click here

After reading the article and reading all the "snip"s I thought I was undergoing a vasectomy!

Now I realize that it is only the Californian legal system undergoing emasculation.

JAS

Before one could consider California legal system to be emasculated requires the consideration of facts heretofor not admitted as evidence.