Last Minute Filings

Holding claims until the eleventh hour before an execution has long been a favorite tactic of the capital defense bar. The tactic forces a court to choose between staying an execution beyond the scheduled date and letting it proceed despite a claim that the court cannot decide in the available time.

The process of setting a date is cumbersome in many states. In some it requires the personal involvement of the governor, who may let final cases go unexecuted for years because of antipathy for the death penalty or simple inattention. Getting past a set date is a big deal, and the defense knows it.

The tactic was used in the first California execution of the modern era in 1992, that of Robert Alton Harris. The claim was a challenge to California's method of execution, which had been in use for many years. The Federal District Court in San Francisco granted a stay, and the Supreme Court vacated it because there was no reason it could not have been filed much earlier, giving ample time to consider it. Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam).

Yesterday, as noted in today's News Scan, the Supreme Court vacated a last-minute stay issued by the Eleventh Circuit for Alabama murderer Dominique Ray, citing the Gomez decision. (Gomez was California's corrections secretary at the time. Harris was the "real party in interest" in a writ that technically names the trial court as the respondent.)

Alabama has a perfectly reasonable policy that only Corrections employees can be present in the execution chamber. A prison-employed chaplain can be one of the employees. This can present a "disparate impact" problem if an inmate of a different faith wants a spiritual advisor of his own faith present in chamber. If that problem rises to a constitutional violation (an issue not yet resolved), the obvious solution would be to remove all clergy, employees or not, to the outside of the chamber, and have only the execution team inside. I expect that is how most states do it.

The four dissenting justices (Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor), don't buy the last-minute-petition argument. They claim that Ray filed the petition in a timely manner under the circumstances. Because the majority does not answer this argument in its brief order, I will copy the District Court's ruling, as quoted in the State's petition:

Ray has been a death-row inmate at Holman Correctional Facility since 1999. Since Ray has been confined at Holman for more than nineteen years, he reasonably should have learned that the State allows only members of the execution team, which previously has included a state-employed chaplain, inside the execution chamber. Indeed, it was the state-employed chaplain who facilitated Ray's involvement with an imam for spiritual advice regarding his impending execution. Assuming that Ray "has been a committed Muslim since at least 2006" (Doc. # 10, at 1), and it being clear that Ray has had the assistance of legal counsel since at least 2003. Ray has had ample opportunity in the past twelve years to seek a religious exemption, instead of waiting until the eleventh hour to do so.

Once the denial of his federal habeas petition became final in 2017, Ray knew (or should have known) that the execution clock had started ticking. Yet there is no indication that Ray took any action for over two years to ensure that the State would honor his desire for a private spiritual advisor to be in the execution chamber with him. On November 6, 2018, the Alabama Supreme Court set his execution date for February 7, 2019. Even then, Ray sat silent, doing nothing for more than two months, waiting until ten days prior to his execution before
filing an action.

In short, Ray has been dilatory in filing this action. He has shown no just or equitable reason for his delay, which cuts against a stay of execution. His complaint came "too late to avoid the inevitable need for a stay of execution," so a stay is not granted. Williams v. Allen, 496 F.3d 1210, 1213 (11th Cir. 2007) (affirming denial of stay when inmate waited to sue until the State requested an execution date); see also, e.g., Grayson [v. Allen, 491 F.3d 1318, 1321, 1325 (11th Cir. 2007)] (affirming denial of stay when inmate sued before execution date was set); Henyard v. Secretary, 543 F.3d 644, 647-49 (11th Cir. 2008) (affirming denial of stay when inmate waited months to sue).

I am very glad to see a majority of the Supreme Court willing to stand up say "no" to needless delay in executions. Let us hope it does so more often.

Last Minute Filings curated from Crime and Consequences Blog