New test on lethal injection
on Jan 30, 2008 at 3:55 pm
UPDATE 5:45 p.m.
Attorneys for Alabama death row inmate James Callahan urged the Supreme Court Wednesday afternoon to delay his scheduled execution on Thursday evening, argung that a federal appeals court had relied on a novel theory of time limits in clearing the way for the execution to occur. His application (Callahan v. Allen, 07A630) can be downloaded here. The case may test whether the Court is willing to continue to block executions until it rules on the lethal injection protocol for execution in a pending Kentucky case.
The execution should be put off, the application argued, to give Callahan a chance to file a regular appeal from the Eleventh Circuit Court ruling and give the Court a chance to consider it outside the pressured time just hours before the execution was to go foward. In lifting a stay of his execution, the Circuit Court, according to the application, used a theory of a statute of limitations that the state did not raise and that was not even before the Circuit Court at all.
The coming petition for review, the application said, will raise three issues: the claimed error by the Circuit Court in finding that a two-year period for challenging a method of execution starts to run at the end of direct review not when an actual method of execution will apply, the availability of a limitations defense to the state when a method of execution is being challenged in a civil rights case, and whether a limitation can ever run on such a civil rights claim that is not ready for review because the method of execution remains uncertain.
The lower courts are divided on those limitations issues in lethal injection cases, according to the application. In fact, some of those issues are now pending before the Supreme Court in an Ohio case, Cooey v. Strickland (docket 07-6234). The Court considered that case and a companion case (Biros v. Strickland, 07-6243) in November, but apparently has put both on hold while it explores constitutional issues surrounding lethal injection.
Presumably, the state will be given a chance to respond to Callahan’s stay request before the Court acts. Because Justice Clarence Thomas is the Circuit Justice for cases from Alabama, he presumably will get the application first; it will be up to him to act alone or to share it with his colleagues.
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Three weeks after the Supreme Court held a hearing on constitutional issues surrounding the lethal injection method of execution for murder, the Justices are expected to be asked later Wednesday whether to keep intact an informal but functional bar to such executions until a ruling is issued in the test case. Alabama legal sources said that attorneys for James Callahan, facing execution in that state at 6 p.m. Thursday, were preparing an application seeking to postpone the execution.
The Court has not permitted an execution to occur since shortly after it agreed to examine the lethal injection method in an order on Sept. 25.
U.S. District Judge W. Keith Watkins of Montgomery on Dec. 14 barred Callahan’s execution, concluding that it “would be a waste of judicial resources” if the Court were to go ahead and rule on the constitutionality of Alabama’s version of the three-drug execution protocol until the Supreme Court has ruled in the case of Baze v. Kentucky (07-5439) — argued Jan. 7 in the Supreme Court. Thus, Judge Watkins opted for a stay. While he said that Callahan might prevail in a challenge to Alabama’s method under one theory, the judge was reluctant to decide the pending challenge on that basis while the Baze decision is awaited. That was the key factor in his decision to postpone the scheduled execution. The judge’s 10-page opinion can be downloaded here.Â
On Tuesday, however, the 11th Circuit Court, in a 2-1 ruling, lifted Judge Watkins’ order, clearing the way for the Thursday execution to proceed. Without examining Callahan’s challenge to Alabama’s execution formula, the majority found that he had filed his challenge too late. Callahan, the majority said, shoujld have begun his challenge before July 31, 2004 — two years after he first selected lethal injection as the method of his execution. “In light of the fact Callahan’s complaint was filed more than two years beyond the limitations period, the district court abused its discretion by entering a stay of execution. We now vacate that decision.” The Circuit Court’s 24-page opinion (which includes the dissent) can be downloaded here.
Callahan was sentenced to death in 1982 for the murder of a Jacksonville State University student, Rebecca Suzanne Howell, after kidnapping her at a landromat in Jacksonville, Ala. She was raped and murdered, and her body was dumped in Tallaseehatchee Creek. His conviction and death sentence became final on Oct. 1, 1990.
 After other challenges in his case failed, he filed a civil rights lawsuit Oct. 11, 2006, claiming that Alabama’s lethal injection method of execution was unconstitutional under the Eighth Amendment. The trial of that lawsuit was due to begin in September of last year, but the state began a new review of the protocol. Judge Watkins, who also noted that the Supreme Court had agreed to hear the Baze case, decided to postpone the trial.
The state issued a revised protocol last Oct. 26, and the state Supreme Court then set Callahan’s execution for Jan. 31. That was when Callahan began pursuing a delay.
