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A frustrated five-judge minority on the 6th U.S. Circuit Court of Appeals decried the “dysfunctional patchwork of stays and executions” in capital cases since January, when the U.S. Supreme Court agreed to explore a procedural attack on lethal injection. Some 38 states use lethal injection out of the 39 that permit capital punishment. In all, courts around the country have granted nine stays of execution, but 15 condemned inmates have been executed during the same period that the lethal injection issue has been pending. “In some instances stays are granted, while others they are not, and the defendants are executed with no principled distinction to justify such a result,” wrote Judge Boyce Martin Jr. last week. He dissented after the full 6th Circuit refused, by a 7-5 vote, to reconsider the request to stay the Tennessee execution of Sedley Alley in Alley v. Little, No. 06-6550. Alley faced execution on May 17 for the 1985 rape and murder of a 19-year-old Marine corporal, Suzanne M. Collins, at Millington Naval Air Station near Memphis. Tennessee Governor Phil Bredesen last week granted a 15-day stay of execution. Alley’s case is the second to challenge the Tennessee chemical protocol used in executions. The other, Abdur’Rahman v. Bredesen, No. 05-1036, was set for the high court’s conference meeting one day after Alley’s scheduled execution. Rahman’s case raises a frontal attack on lethal injection. Critics claim that the chemicals used in lethal injections do not properly anesthetize the subject, and thus cause unnecessary suffering before death. An unnerving situation The situation around the country is unnerving for defense lawyers where stays may be handed out in one circuit but denied in the circuit next door. “The problem is we have no guidance from the court on how to defend our clients,” said Kelley Henry, one of Alley’s lawyers. “It is very discouraging when your client’s life is on the line.” She said that the stay request is no different from ones granted in Missouri, North Carolina, Maryland and other states where the execution method is under attack. The 6th circuit refused to issue a stay to Alley even though he raised the same issue in the same procedural posture as a high court case likely to be decided in less than a month, Hill v. McDonough, No. 05-8794. The question in Hill is not a direct challenge to lethal injection but a procedural one. The case asks whether inmates may invoke a federal civil rights law, 42 U.S.C. 1983, to challenge the state’s method of lethal injection. Without access to the civil rights claim, the court would have no jurisdiction to review the issue as a successive habeas appeal under a 1996 law in which Congress limited successive appeals. Whether or not the high court decides a civil rights action is a proper vehicle for challenging lethal injection, it would not change Alley’s situation, according to Chief Judge Danny J. Boggs, writing for the 6th Circuit majority. The Supreme Court has the authority to issue a nationwide stay of executions but it has not, Boggs pointed out. The high court’s consideration of a procedural matter such as Hill’s “can not freeze in place all actions in the lower federal courts under existing law.” Even the Supreme Court has declined to issue stays in several cases raising nearly identical claims, he said. “Given the Supreme Court’s own pattern of conduct . . . we cannot conclude that the Supreme Court has established any new precedent that would favor a stay of Alley’s execution pending the outcome in Hill,” he wrote. The Hill case is the latest in a rising number of appeals over lethal injection from around the country. On May 15, the Texas Court of Criminal Appeals stayed an execution within hours of the deadline in a case that, like the others, raised lethal-injection challenges, but eight other condemned have been executed in the state this year, according to Richard Dieter, executive director of the Death Penalty Information Center in Washington. “I think the Supreme Court is going to have to take up the whole question of lethal injection eventually,” he said. In California, U.S. District Judge Jeremy Fogel set hearings for September to review that state’s lethal-injection practices in the case of Michael Morales. New Jersey and Ohio courts have halted executions while lethal-injection procedures are reviewed. Delaware stayed an execution May 9 based on a challenge to state execution procedure. And a federal court in Missouri stayed an execution to allow a lethal-injection challenge more time. “The death penalty is basically grinding to a halt, but that means in the meantime some people are executed and some are not,” said Dieter.

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