Indiana inmate executed by lethal injection
MORNING UPDATE: News organizations reported that Indiana carried out the execution of Marvin Bieghler after about a 30-minute delay awaiting word from the Supreme Court on the state’s request to allow the execution.. He reportedly was pronounced dead at 2:17 a.m.
LATEST UPDATE: 00:45 a.m. Overturning the Seventh Circuit Court, the Supreme Court voted 6-3 early Friday to permit the state of Indiana to carry out the execution of Marvin Bieghler by lethal injection. The Court granted the request of the Indiana state attorney general to vacate the order delaying the execution, an order the Seventh Circuit had issued late Thursday. Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens noted they would have denied the state’s motion. The application was Donahue v. Bieghler, docketed as 05-A-684.
UPDATE 11:00 p.m.:After the Seventh Circuit Court, dividing 2-1, ordered a delay of the execution, the state of Indiana asked the Supreme Court to lift that stay. The request was still being considered as midnight approached. The Seventh Circuit acted after the Supreme Court denial, discussed below.
The Supreme Court on Thursday evening cleared the way for Indiana to carry out after midnight the execution of Marvin Bieghler, refusing to hear his challenge to the process of lethal injection that the state uses to carry out a death sentence. The Court both refused to postpone the execution, and denied review of Bieghler’s appeal raising that “cruel and unusual punishment” issue. Two Justices would have ordered delay of the execution.
The Court’s action came one day after the Justices had agreed, in a Florida case, to spell out the procedures that death row inmates may use in challenging execution by lethal injection. In the Indiana case, the defense lawyer had asked the Court to order a delay in the scheduled execution until after it had decided the Florida case, an appeal by inmate Clarence Edward Hall (docket 05-8794).
Unlike Hill’s case, Bieghler’s appeal was a direct challenge to the constitutionality of lethal injection. Indiana uses a protocol of three drugs to anesthetize the individual, stop his breathing, and stop his heart. Bieghler was challenging the anesthetic, claiming — based in part on a study published in April in the British medical journal Lancet – that the anesthetic does not spare the individual from “unnecessary pain and agony.”
Earlier Thursday, Indiana Governor Mitch Daniels turned down a clemency request.
The Supreme Court denied the petition in Bieghler v. Indiana (docket 05-8824) and the stay application (05-A-679). Justices John Paul Stevens and Ruth Bader Ginsburg noted that they would grant the stay
Bieghler, a drug dealer, had been put out of business when someone tipped police about his activities.. He had said that if he discovered who the informant was, he would kill that individual . He later expressed the belief that a man named Tommy Miller of Russiaville had given the tip to police. On Decembeer 11, 1981, Miller and his pregnant wife were found dead in their trailer home in the small town west of Kokomo.
Among a series of appeals, Bieghler had asked the Supreme Court last April to review his conviction and death sentence. The Court denied review on Oct. 11 (05-5199), in Bieghler v. McBride. The Indiana Supreme Court last Dec. 28 refused to allow him to file a new challenge, including his claim about the lethal injection method.
Why would the Court stay the other one and let this one go? A possible difference in the cases is that Bieghler filed his initial federal habeas petition in 1998, three years after Indiana went to lethal injection. Hill’s initial habeas was already over when Florida switched. This could be an indication that the Court has no intention of backing down from the Gomez v. Dist. Ct. (Harris) rule that a method of execution claim must be brought on the first habeas if it can be, but they want to explore possible avenues for challenging late changes in the method.
Also, if the case is coming from the state supreme court it is probably not a § 1983 action, and it does not raise the specific procedural questions involved in Hill.
Comment by Kent Scheidegger — January 26, 2006 @ 8:05 pm
Selecting Hill has a tool to resolve the relation between 1983 and habeas corpus is an odd choice because the underlying claim is frivolous. Lethal injection has withstood every evidentiary hearing it has faced. To halt an execution and expedite the briefing and argument schedule to determine whether the petitioner gets to litigate a claim he is most certain to lose is, to say the least, impractical. Aren’t there more substantive issues the Court can use to resolve the 1983/habeas issue?
Comment by Harsasa — January 26, 2006 @ 10:11 pm
The Seventh Circuit, when the issue came before it a few hours ago granted a stay, 2-1. For clarity’s sake, this was after the SCOTUS denied cert off of the state appeal.
Comment by All Writs — January 26, 2006 @ 10:56 pm
OK…Now I’m really confused on this whole issue. Kent can you help me understand this in layman terms. Also is there anything the legal foundation can do to help us in this issue?
I can be reach at the following email.
Regards,
Gary Mace
garymace@bellsouth.net
Comment by Bistro1 — January 27, 2006 @ 7:26 am
Here’s my guess on why the Court took the 11th Circuit case but not the Indiana case. The 11th Circuit case squarely presented the issue of whether these general lethal injection challenges are more appropriately considered in habeas or 1983. The 11th Circuit opinion did not sidestep the issue by simply conducting stay / injunction analysis – the 11th Circuit said that the district court lacked jurisdiction to consider the 1983 action because it was in reality a successor habeas petition that has to go through the court of appeals first under 28 U.S.C. 2244 (which Hill’s claim failed to meet). I have not seen the 7th Circuit’s stay order, but my guess is that the court there did not even address the habeas vs. 1983 problem and instead applied general stay principles.
In Nelson v. Campbell, the Supreme Court allowed a 1983 challenge to proceed, but the Court was careful to note that the “cutdown” procedure that the inmate was attacking was unnecessary and severable from the execution itself. And the inmate filed as soon as he was informed that the State planned to use the cutdown procedure during his execution. The Supreme Court expressly left unanswered the broader question of whether claims against lethal injection can also be maintained under 1983.
Since Nelson, inmates all over the country have been losing these general lethal injection claims in the final days before their execution because they cannot meet the criteria for a stay / injunction. And many of the lower courts simply say that whether it is a 1983 action or a habeas petition the inmate waited too long to file it and he failed to show a likelihood of success on the merits. And in every one of those cases the Supreme Court has turned back the inmate (even vacating circuit court stays to do so).
The Hill case gives the Supreme Court the cleanest opportunity to address the question that they left open in Nelson. And there is a circuit split, with at least the 5th and the 11th finding these challenges to be habeas claims (the 11th was more definitive than the 5th), and at least the 9th Circuit saying that they are proper 1983 actions.
Comment by stateatty — January 27, 2006 @ 8:34 am
I left the below comment at Sentencing Law & Policy; would be interested to hear what the folks over here think, especially in light of the Biegher execution stay votes:
I agree that the most confusing thing about this is why they didn’t simply summarily reverse and remand if the concern was inconsistency with Nelson. One possibility is that Hill is a case in which the four (or more) votes for cert. may have been drawn from both sides of the aisle — in this case, those who want to smack down the 11th Cir. for missing the Nelson issue and those who want to limit Nelson to narrow (and unusual) claims about the execution procedure that do not challenge the fact of execution itself. Sheer speculation, of course, but I can even imagine this starting out in conference as a reverse-and-remand but then those with other agendas — especially the “limit Nelson to its facts” contingent (which I strongly suspect includes the new Chief Justice) — realized that it was an opportunity to move the law. Nelson itself was, strikingly, a unanimous decision (authored by O’Connor), and even if they felt compelled to vote to join the majority opinion because of its logic (the Nelson claim was very carefully framed to be a genuine 1983 claim and not fall into the Preiser v. Rodriguez “fact or length of sentence” trap), it couldn’t have made Scalia or Thomas (and maybe Kennedy also) too happy. That someone on the Court was worried about the consequences of the decision is signalled by the opinion’s final section, which goes out of its way to allay the fear that the opinion will “open the floodgates to all manner of method-of-execution challenges, as well as last minute stay requests.” I haven’t seen any reports (statistical or anecdotal) about an up-tick in 1983 claims in these situations since Nelson, but I’d be surprised if it wasn’t on the conservatives’ minds.
So my guess is that the issue that Scalia, Thomas and Roberts (at a minimum) want to decide is the one left open in Nelson, i.e., “the question whether a request to enjoin the execution, rather than merely to enjoin an allegedly unnecessary precursor medical procedure, properly sounds in habeas [rather than sec. 1983].” At least according to the underlying 11th Cir. opinion, “enjoining the execution” is precisely the relief requested by Hill. A holding that limited Nelson to its unusual type of claim would presumably put a significant crimp in these pre-execution sec. 1983 filings. My guess is that’s exactly what the Court will do with Hill — even more certainly if/when Alito is on the Court, of course.
Comment by Adam Thurschwell — January 27, 2006 @ 9:38 am
Gary,
I’ll defer to Kent if he says I’m wrong, but my understanding is that the Florida case presented an entirely different issue. The Indiana case raised the underlying question of whether lethal injection is unconstitutional, and the court refused to hear that question from this prisoner; the Florida case raised the procedural question of how a prisoner should go about challening the death penalty.
These are different questions, and frankly, the court’s disposition in the Indiana case does not bode well for Hill’s chances of winning his case once the procedural questions in the current case are resolved.
Comment by Simon — January 27, 2006 @ 11:08 am
Incidentally, Lyle writes: “[t]wo Justices would have ordered delay of the execution.” The order lists three: “Justice Stevens, Justice Ginsburg, and Justice Breyer would deny the application to vacate the stay of execution.”
Comment by Simon — January 27, 2006 @ 11:11 am
Gary, unfortunately, all we can do at this point is speculate. The Supreme Court’s order lifting the stay in the Indiana case tends to support my hypothesis, but there is no opinion with it, so we really don’t know the reason.
I will answer you by email regarding your individual situation.
Comment by Kent Scheidegger — January 27, 2006 @ 11:15 am
I was involved in the Bieghler case and perhaps can clear up some of the confusion on the case. First, Lyle’s post(s) (and most media reports) was mistaken about some of the details. It not surprising given the rapid development of the case. There were two cases before the Court, the first was Bieghler v. Indiana and sought certiorari review of a decision of the state supreme court that found a lethal injection challenge such as this is not a basis for successive state post-conviction review, in part because of Indiana’s PCR rules. In that case, the Court denied cert with Justices Stevens and Ginsburg voting to grant.
The other case, Donahue v. Bieghler, involved a 1983 challenge to the procedure that was first filed Thursday morning. Unlike in Hill, the State defenants did not argue that the 1983 action was properly construed as a habeas claim. Instead, the defendants argued that a TRO or PI was improper due to the plaintiff’s obvious delay (he only brought suit after Hill, plus the 10+ years the claim could have been brought as Kent observed). The district court denied injunctive relief on that ground, relying on Nelson and Gomez (Harris).
In the early evening, the 7th Circuit granted a stay (2-1), although it was explicit in saying one was warranted only because of uncertainity about the meaning of the Hill grant. All other equities weighed favorably to the defendants.
The defendants then asked the Court to vacate the stay because the purely procedural questions in Hill had no implications for the Bieghler case given the State’s position. (Incidentially, this was the point made by the dissenting judge below.) At just after midnight, the Court vacated the stay with Justices Stevens, Ginsburg, and Breyer voting to deny.
It seems to me that the most telling meaning of this is that Hill should not mean an automatic moratorium on executions where the lethal injection claim is made.
Comment by Steve — January 27, 2006 @ 12:33 pm
Steve,
So you’re saying that CA7 issued the stay because it wasn’t sure what implication the stay in the Florida case would have, and SCOTUS vacated the stay as if to say “don’t worry about it, that isn’t what we meant”? If that’s correct, I think the conclusion “that Hill should not mean an automatic moratorium on executions where the lethal injection claim is made” is right, but does the vacation in the Indiana case foretell anything for what is going to happen in the Hill case itself? I ask because it seems curious to me that Justice Souter is not listed as one who would uphold the stay.
Comment by Simon — January 27, 2006 @ 1:29 pm
Thanks, Steve, for the additional info. I think this is consistent with both Simon’s view that the cases present different procedural questions and with mine that the histories of the cases present different timing questions.
California’s on-deck murderer has applied for a stay on the same grounds. I wouldn’t be surprised to see another stay and an application to vacate, as in Indiana. Justice Alito should be on board by then.
Comment by Kent Scheidegger — January 27, 2006 @ 1:29 pm
Everyone…Thanks for the explainations in this matter. I will pass this informatin on to our family. We can only hope that the delay we’ve seen in the Hill case will prevent such delays for other families in the future.
Regards,
Gary Mace
Comment by Bistro1 — January 27, 2006 @ 6:01 pm
dude the death penalty is so over raded. thereis no resoan for it. killing people because of a mistake forget it. lose the death penalty. most people think it is wrong.
Comment by robert fisher — January 12, 2008 @ 3:19 pm