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No review of execution procedure

The Supreme Court refused on Monday to reopen the issue of the constitutionality of the procedures that states use to carry out death sentences by lethal injection.  Without comment or noted dissent, the Court turned aside a new petition by a Tennessee inmate seeking a ruling that lower courts must make a detailed examination of a state’s injection protocol in order to determine whether it causes unnecessary pain before death occurs.  The case was Harbison v. Little (09-7777).

The petition filed by lawyers for Edward Jerome Harbison argued that lower courts have been upholding other states’ lethal injection procedures by making a simple finding that they are similar to the methods the Supreme Court upheld in a Kentucky case two years ago (Baze v. Rees).  The Harbison appeal also argued that, on closer examination, Tennessee’s procedure fails to assure that the inmate will be completely unconscious and thus will does not prevent excruciating pain during the three-drug protocol in use in that state.

Besides bypassing that case, the Court also refused to take a new look at the ongoing controversy over the constitutionality of placing religious displays — in particular, monuments to the Ten Commandments — on government property.  The Court denied review of an appeal by officials of Haskell County, Okla., urging the Justices to clarify the authority of government officials to accept privately donated religious displays on the lawn of a public building.  Lower courts are confused on the issue, the petition claimed, in the wake of the Supreme Court’s two rulings — with opposite outcomes — on the issue in 2005.

“The need for directions from this Court,” the petition contended, “is evidenced within the Tenth Circuit, where the 12 judges were evenly split on whether the panel reached the proper result” in declaring unconstitutional the display of the Commandments amid other monuments on the grounds of the county courthouse in Stigler, Okla.  A Tenth Circuit panel based its ruling partly on the fact that members of the county board had publicly endorsed the display, rather than merely passively accepting it from a private donor.  The case was Haskell County Board v. Green, et al. (09-531).

The Court also refused to review a new case that might have provided a vehicle for re-examining the so-called “exclusionary rule,” which has come under some sharp criticism among the Justices.  The new case was McCane v. U.S. (09-402).  The case specifically sought to challenge the scope of what is called the “good faith” exception to the rule that evidence obtained in an illegal police search may not be used in a criminal trial.  Under the “good faith” exception, such evideence may be used if police genuinely believed their search was legal, at the time of the search.  The new appeal sought to test whether the exception applies, if police made a search based upon their authority under a court ruling that later was overruled by the Supreme Court.

In the McCane case, Oklahoma City police searched a car they had stopped for a traffic violation, and found a pistol hidden in a pocket of the car door.  The police based their search on the Supreme Court’s 1981 ruling in New York v. Belton.  But, while the McCane case was pending in lower courts, the Supreme Court ruled in Arizona v. Gant that lower courts had been applying the Belton precedent too broadly to justify police searches.  In the McCane case, the Tenth Circuit then ruled that, while the search of the car was invalid under the Gant decision, police were entitled to rely upon Belton when they conducted the search at issue.