Eleventh Circuit shuts down another lethal injection litigant

http://sentencing.typepad.com/sentencing_law_and_policy/2006/10/eleventh_circui.html

From the BLOG Sentencing, Law and Policy


Eleventh Circuit shuts down another lethal injection litigant

Late yesterday, the Eleventh Circuit in Rutherford v. McDonough, No. 06-10783 (11th Cir. Oct. 5, 2006) (available here) turned away another capital defendant's effort to assail Florida's lethal injection protocol through a § 1983 suit.

A split panel Rutherford essentially follows the lead of a prior panel's work in Hill (discussed here and here) in ruling that the death row defendant's § 1983 suit was brought too late.

Judge Wilson writes a lengthy dissent, which concludes with this footnote:

A court in the Northern District of California is currently hearing expert testimony regarding a challenge to California's lethal injection protocols, which are materially similar to Florida's procedures. Morales v. Woodford, No. C-06-219-JF-RS (N.D. Cal. 2006). Rutherford deserves the same opportunity.

Consequently, I would grant Rutherford's Application for a Stay of Execution, permitting him to return to the district court for a hearing on the merits of his § 1983 claim.

Some recent related posts:

Regulating executions in California
A lethal hearing (in the wrong place?)
My lethal injection piece on SSRN
Lots and lots of lethal headlines
Supreme Court denies stay in Hill
Up and down the Hill again


UPDATE: This Los Angeles Times article discusses the California lethal injection litigation noted by Judge Wilson.

Here is the lead:
A federal judge considering the constitutionality of the way California kills condemned inmates has asked prosecutors and defense lawyers a series of questions — including how the lethal injection procedures could be improved — that pose difficulties for both sides, experts say.