[Deathpenalty] death penalty news----TENN., MO., NEB., COLO., IDAHO, NEV., CALIF., USA

[Rick Halperin]

September 18



TENNESSEE:

Erick Eugene Jones Jr. Trial Testimony Begins



Prosecution testimony began Monday morning in the Greene County Criminal Court 
trial of Erick Eugene Jones Jr.

Prosecutors seek the death penalty for Jones, 25, who is charged with 4 counts 
of 1st-degree murder, along with 2 counts each of aggravated child abuse and 
aggravated child neglect in connection with the December 2014 deaths of 
13-month-old Kynsleigh Easterly and 2-month-old Trinity Brooke Tweed, who lived 
with mother Kendra Lashae Tweed in the same North Hardin Street house as Jones.

The credibility of Jones and witnesses who will testify at trial will 
ultimately determine if the jury finds him guilty of the crimes.

Each count reflects different theories of the crimes allegedly committed by 
Jones, who maintains his innocence.

In opening statements before 2 prosecution witnesses took the stand, both 3rd 
Judicial District Attorney General Dan E. Armstrong and lead defense lawyer 
Douglas L. Payne urged the jury to consider all the evidence presented during 
trial, including a series of statements given by Jones to investigators shortly 
after the girls' deaths and an additional statement given while he was in 
custody in February 2015.

Armstrong detailed the traumatic injuries suffered by Kynsleigh Easterly and 
Trinity Brooke Tweed in telling the jury about testimony to be given by a 
doctor who conducted their autopsies.

The doctor will testify that the girls' spinal cords were essentially severed 
from their brains and both suffered suffered blunt force trauma, Armstrong 
said.

Jones gave conflicting versions of events in different interviews with 
detectives from the Greeneville Police Department and Tennessee Bureau of 
Investigation that alternately shifted responsibility for the girls' deaths to 
Kendra Tweed and at least one other person, Armstrong told the jury.

The girls were in the care of Jones while Tweed worked the early morning hours 
of Dec. 17, 2014, as an aide to an elderly woman in Greeneville. Jones was 
charged several days later in connection with the deaths. Tweed, 25, was 
charged in 2015 with first-degree murder and aggravated child abuse in 
connection with the case.

Tweed's case is pending. She is expected to testify for the prosecution at 
trial. When she returned home, she found both girls "unresponsive" and cold, 
Armstrong said.

Evidence will show the girls had apparently been dead for some time before a 
"very distraught" Kendra Tweed returned home and called 911 on the morning of 
Dec. 17, 2014, Armstrong said.

Tweed gave the phone to Jones, who agreed to try CPR on the children.

"He said several days later he knew Kynsleigh and Trinity had been dead for 
hours," Armstrong told the jury.

Armstrong said that Jones told investigators he didn't call 911 because he 
"panicked because there were drugs in the house" and began flushing drugs down 
the toilet about 4:30 a.m. that morning.

"He was telling the truth," Armstrong told the jury.

Jones identified at least 2 other people who had been at the house that night, 
and detailed drug use and related activity in versions of events to 
investigators, Armstrong said.

He denied hurting anyone. Payne told the jury in his opening statement that 
jurors should pay heed to Jones' contention that he is not responsible for the 
girls??? deaths.

"Mr. Jones said what truly happened and you will see for yourself who caused 
the deaths," Payne told the jury.

Kendra Tweed's sister, Kristen Trombley, and her boyfriend, Joshua Hall, were 
the first 2 prosecution witnesses Monday morning.

Trombley testified she was at the North Hardin Street house on Dec. 16, 2014, 
and later took Kendra Tweed to work at the house of the woman she was caring 
for.

Under cross-examination by defense lawyer J. Russell Pryor, Trombley said she 
was not aware of any chronic health problems the girls had. Kynsleigh had a 
cold, Trombley said.

Pryor asked Trombley if she ever saw Kendra Tweed "on the edge of crying" after 
she began a relationship with Jones.

"No," Trombley replied.

Hall then took the stand. He testified he picked up Kendra Tweed about 5 a.m. 
on the morning of Dec. 17, 2014, at the home of the woman she was caring for. 
It took about 15 minutes to get to the house Tweed lived in with Jones on North 
Hardin Street.

Hall testified he walked Tweed to the entrance to the house. Armstrong asked 
Hall what he saw when Tweed opened the door before he left.

"The house was dark and I saw (Erick Jones) laying on the couch," Hall said.

Hall testified he was not aware from what he saw of any medical problems 
Kynsleigh Easterly or Trinity Tweed might be suffering.

One child was found by first responders in a "bouncy chair," while the other 
was laying in a love seat.

Pryor asked Hall on cross-examination if Kendra Tweed was in the habit of 
coming home often while she was working.

"No," he responded.

Prosecution testimony continues this afternoon.

Jury selection concluded on Friday in Morristown. Members of the jury are 
Hamblen County residents. They will be sequestered throughout the length of the 
trial, which court officials said could last up to 2 weeks.

Judge John F. Dugger Jr. presides in the trial, which will also be conducted on 
Saturdays until its conclusion.

The jury includes 16 members, including 4 alternates. Because it is a capital 
case, additional alternate jurors were selected. Specific rules and procedures 
will apply because the state seeks the death penalty for Jones.

Dugger is being advised during the case by Susan Jones, a capital case 
attorney. Capital case attorneys assist Tennessee trial judges with the 
management of death penalty cases.

(source: The Greeneville Sun)








MISSOURI:

Triple murder trial postponed because of attorney's illness



The trial of a suspect facing the death penalty after a triple homicide has 
been postponed.

The St. Louis Post-Dispatch reports 27-year-old Shawn Kavanagh's trial on 3 
counts of 1st-degree murder and other charges was scheduled to begin Wednesday. 
One of Kavanaugh's lawyers, Robert Lundt, asked for a postponement because he 
was too ill to continue.

A hearing was scheduled for Oct. 2 to set a new trial date.

Kavanagh, of Bellflower, is charged in the February 2014 stabbing deaths of 
29-year-old Lexy Vandiver, her 7-year-old son, Mason, and 22-year-old Tara Lynn 
Fifer, of Montgomery City. Kavanagh is also charged with stabbing and wounding 
his estranged wife.

The victims were attacked in a home south of Jonesburg. Vandiver's 18-month-old 
daughter was found unharmed inside the home.

(source: Associated Press)








NEBRASKA:

Attorney for Bailey Boswell argues that state's death penalty is 
unconstitutional



A judge has taken under advisement a motion by slaying suspect Bailey Boswell, 
who is arguing that the state's capital punishment statutes are 
unconstitutional.

Boswell and her 52-year-old boyfriend, Aubrey Trail, could face the death 
penalty if convicted in connection with the slaying and dismemberment of 
Lincoln store clerk Sydney Loofe.

On Monday, Boswell was in Saline County District Court with her court-appointed 
lawyers, who argued that Nebraska's death penalty statues should be tossed out 
as unconstitutional.

Among the arguments raised by Todd Lancaster of the Nebraska Commission on 
Public Advocacy were that the decision to seek the death penalty is arbitrary, 
because state statues give no guidance to prosecutors and that the nation's 
"evolving standards of decency" are such that execution is cruel and unusual 
punishment.

Saline County District Judge Vicky Johnson took the arguments under advisement 
after a brief court hearing. She gave state prosecutors until Oct. 1 to file a 
written response.

Boswell, 24, is charged with 1st-degree murder and improper disposal of a body 
in connection with Loofe's slaying. Loofe's body was found in plastic bags near 
Edgar, Nebraska, about 3 weeks after she went on a date arranged online with 
Boswell.

Boswell and Trail were then living in a basement apartment in Wilber, Nebraska, 
and were financing a lifestyle that included trips to casinos and vacation 
resorts by selling and buying antiques, at times using bad checks or fraud. The 
pair were recently convicted in federal court of scamming a Kansas couple out 
of $400,000 in a scheme to buy a rare coin overseas. Boswell was accused of 
using a bad check to purchase antiques in Pennsylvania.

Trail, who has a long criminal record, has told reporters that he was 
responsible for Loofe's death and that Boswell was not in the room when it 
happened.

(soruce: omaha.com)








COLORADO:

Colo. DA hasn't made death penalty decision in Chris Watts case; capital 
punishment in Colo. is rare



District Attorney Michael Rourke has yet to make a decision as to whether to 
push for the death penalty in the case of Chris Watts, the 33-year-old Colorado 
man who stands accused of 3 counts of 1st-degree murder and 1 felony count of 
unlawful termination of a pregnancy.

What's the background?

Police charged Chris Watts with the felonies after his wife Shanann - who was 
15 weeks pregnant with the couple's 3rd child - disappeared along with the 
couple's 3- and 4-year-old daughters.

Shanann returned home to Frederick, Colorado, from a business trip in the early 
hours of Aug. 13. Upon her return, the couple reportedly held an emotional 
conversation about the status of their marriage. During the conversation, Chris 
Watts reportedly told his wife that he no longer wanted to be married.

Local police performed a welfare check on Shanann and her young daughters after 
the 34-year-old mother didn't show up for a 1:30 p.m. doctor's appointment.

Just 1 day later, police arrested Watts and took him into custody. The day 
after, investigators discovered Shanann's body buried in the ground at a 
petroleum company where he worked. Law enforcement officials also found the 
bodies of the couple's children, Celeste and Bella.

In an unsealed court affidavit, police alleged that Watts was having an affair 
- a claim he initially denied. Watts admitted to killing his wife in a fit of 
rage after he said she had strangled their daughters after he revealed he 
wanted a divorce.

Watts has been incarcerated at the Weld County Jail, and awaits a Nov. 19 
status conference.

According to a Friday report in the Greeley Tribune, Rourke is undecided on 
whether to seek the death penalty in the Watts case.

Krista Henery, a spokesperson for the Weld County District Attorney's Office, 
said that it was simply too early in the process for Rourke to determine such a 
fate, and people will likely hear more about this later, in 2019, rather than 
sooner.

"We're talking many months before [Rourke] will make or announce that 
decision," Henery said.

With Watts' next hearing scheduled for Nov. 19, it seems unlikely that Rourke 
will announce anything regarding a capital punishment decision, as Colorado law 
mandates that a district attorney has 63 days from the date of an arraignment 
to pursue such punishments.

What's the deal with Colorado and capital punishment?

In 1974, a measure to reinstate capital punishment was approved.

Since then, just 1 person - in 1997 - has been subjected to the death penalty 
in Colorado. Gary Davis was the 1st Colorado inmate to be executed in a period 
of 30 years after the rape and murder of his neighbor, Virginia May. At the 
time of this writing, 3 Colorado inmates are on death row.

The state has executed 103 people since 1859. Not even Aurora, Colorado, movie 
theater mass murderer James Holmes received the death penalty, and instead, 
will remain behind bars for the rest of his life after executing more than 12 
people and injuring many more.

The Tribune reported that Arapahoe County spent about $1.9 million to prosecute 
Holmes. The Denver Post estimated that the Holmes trial likely cost taxpayers 
between $3 million and $3.5 million.

The outlet also noted that Don Warden, who is the director of the Weld County 
Finance and Administration Office, said that Weld County could absorb what the 
outlet describes as "reasonable requests for additional resources" if the D.A. 
decided to seek the death penalty in the Watts case.

For Colorado's legal system, the jury is told to consider any mitigating or 
aggravating factors in a crime, such as the defendant's prior criminal history, 
committing a crime in front of a child, a lack of remorse, whether the 
defendant was under duress or suffering from mental illness - such as was 
determined in the case of Holmes - while carrying out the crime, and more.

Former former Weld District Attorney Al Dominguez told the outlet, "I'm sure 
[Rourke] is going through a similar process as he tries to determine over the 
next couple of months if the case is aggravating enough to seek the death 
penalty."

(source: theblaze.com)








IDAHO:

Idaho Department Of Correction Can Keep Lethal Injection Drugs Secret, Judge 
Says



The Idaho Department of Correction doesn't have to release information about 
which drugs it used to execute 2 inmates or where it got them from - at least 
for now.

In May, an Idaho judge ruled state correction officials had to hand over 
records and receipts of any drug used in the executions of Paul Ezra Rhoades 
and Richard Leavitt.

The order also required the department to release records of drugs bought for 
future executions to a University of Idaho law professor and the ACLU of Idaho 
who filed the suit.

Monday morning, Judge Lynn Norton ordered a new trial to determine whether the 
state has to disclose these records.

"We'll go to trial and once again prove that secrecy around lethal injection in 
particular is harmful to the public interest," says Ritchie Eppink, legal 
director for ACLU of Idaho.

In court records, Department of Correction Deputy Director Jeff Zmuda said 
releasing this information would "jeopardize" future executions.

That's because drug companies would face "significant harassment and pressure" 
to stop selling their products for use in lethal injections, he says.

"The reason why their ability to carry out executions would be jeopardized by 
being transparent was because they'd be disclosing information that the 
public's just not comfortable with and that's why we have the public records 
act in the first place," Eppink says.

A spokesperson for the Idaho Department of Correction says he hasn't seen the 
ruling and can't comment on it.

Idaho Attorney General Lawrence Wasden recently waded in to a court case in 
Nevada in which a pharmaceutical company accused the state of illegally 
purchasing one of its drugs to carry out its first execution since 2006.

Wasden joined with 14 other state attorneys general to support Nevada, saying 
drug companies shouldn't be able to file such last-minute lawsuits, calling it 
"guerilla war against the death penalty."

Up until a few years ago, states had used a 3-drug cocktail to execute inmates: 
1 drug to sedate, 1 to paralyze and 1 to stop an inmate's heart from beating.

In 2012, Idaho correction officials switched its lethal injection protocol to 
use only a single, lethal dose of pentobarbital. The Danish company that 
manufactures the drug eventually stopped exporting it to states carrying out 
executions.

It's unclear what, if any, lethal injection drugs Idaho may have on hand. The 
state has executed only 3 people since 1977 - the last of which took place in 
2012.

9 inmates - 8 men and 1 woman - currently sit on Idaho's death row.

The 2 parties will meet to schedule a trial at the beginning of October to 
determine whether the state has to release these records.

(source: Boise State Public Radio)








NEVADA:

Judge to decide on Nevada's execution drug lawsuit this week



Drug companies could encounter backlash and risk hurting their growth in the 
medical industry if their products are used in an execution, a pharmaceutical 
industry expert testified Monday.

Sean Nicholson of the National Bureau of Economic Research listed ways drug 
companies could be harmed if their products were used to put Nevada prisoner 
Scott Dozier to death, wrapping up a hearing in a lawsuit over the state???s 
capital punishment cocktail.

The potential damages he listed included investors selling off shares, profit 
losses and a loss of opportunities to license and develop with other firms. A 
botched execution could prolong negative media coverage focused on the 
companies, he said.

Assistant Solicitor General Jordan Smith, who represents the Nevada Department 
of Corrections, asked Nicholson how he knew harm would occur if most of the 
general population supports the death penalty.

"Because of the polarizing nature of it," Nicholson responded, adding that the 
medical industry strongly discourages using drugs for executions.

District Judge Elizabeth Gonzalez is expected to issue a decision on a 
preliminary injunction that would prevent the state's prison system from using 
the drugs in an execution.

Drug companies have the right to remove and restrict medications that have 
already been sold, argued Todd Bice, who represents Alvogen, which produces the 
sedative midazolam.

"The end effect is that the public suffers," Bice told the judge. "These drugs 
become less and less available for those who need them."

Smith argued that the prison department made no misrepresentation to its 
3rd-party distributor when purchasing the drugs, and that the companies' claims 
"drift into stay of execution" not allowed by law, rather than the legal issues 
of reclaiming drugs.

Lawyers for Alvogen, Hikma Pharmaceuticals and Sandoz have argued that the drug 
companies would suffer irreparable harm if their products were used in an 
execution and that the Department of Corrections should return the medications.

Dozier's execution was halted in July, for the 2nd time in 9 months, after 
Alvogen sued the prison system. Dozier would be the 1st prisoner executed in 
Nevada since 2006. The inmate, who waived his legal appeals in late 2016, was 
sentenced to die in 2007 after 1st-degree murder and robbery convictions in the 
killing of Jeremiah Miller. Dozier had a murder conviction in Arizona before he 
was brought to Nevada to face charges in Miller's death.

(source: Las Vegas Review-Journal)








CALIFORNIA:

Fresno Indian American Charged with Killing His Son's In-Laws Could Face Death 
Penalty



An Indian American man could get the death penalty for killing his son's 
in-laws, following a family dispute Sept. 9 afternoon in Fresno, Calif.

Darshan Singh Dhanjan, 65, allegedly shot dead Ravinderpal Singh, 59, and 
Rajbir Kaur, 59, who were seated on recliners in the home they all shared in 
Fresno. Dhanjan is being held in Fresno County Jail on bail of $3 million; he 
has been charged with two counts of murder, and one felony count of assault 
with a deadly weapon.

The Fresno County District Attorney's office said in a press statement that the 
charges could receive a death penalty sentence, but a decision as to whether to 
seek the death penalty has yet to be made.

Police are still seeking a motive for the shootings, but told local media that 
the altercation occurred because Dhanjan wanted the victims to move out of the 
home, which is owned by Dhanjan's son, who has not been named, and his 
daughter-in-law, Jaldeep Kaur, who saw the horrific incident and barricaded 
herself in her bedroom with her 4-year-old daughter before calling 911.

The victims had received their green cards just a few months earlier. They had 
been living at the home for 6 months and were scheduled to move out but 
refused, according to The Fresno Bee.

The police have procured CCTV footage of the gruesome incident, as the 
household had security cameras inside and outside the home. "Both the husband 
and wife were seated on recliners when they were shot. Ravinderpal still had 
the remote control in his hand when he was murdered," Fresno police chief Jerry 
Dyer told The Fresno Bee, noting that there appeared to be no struggle.

"The couple's daughter heard gunshots coming from downstairs. She immediately 
came downstairs and saw her husband's dad standing with a gun in his hand," 
Dyer was quoted by FOX 26 as saying, adding that Dhanjan also threatened to 
shoot his daughter-in-law as she began to scream.

After the shootings, Dhanjan reportedly confessed the murders to his wife, who 
also has not been named; she also called 911. Dhanjan then drove out of the 
house in a 2005 Toyota Prius. Police arrested him about 3 miles away from the 
home. Dyer noted that the suspect still had blood on his hands, but cooperated 
with police.

The Fresno Bee reported that Superior Court Judge Michael Idiart suspended 
criminal proceedings Sept. 12 after defense attorney Kojo Moore called into 
question Dhanjan's competency to stand trial. Idiart ordered Dr. Howard 
Terrell, a psychiatrist, to examine Dhanjan in jail.

Idiart then ordered Dhanjan, Moore and prosecutor Robert Romanacce to return to 
court on Oct. 17 to discuss Terrell's report.

(source: indiawest.com)

*******************

Murder suspect allegedly beat California woman to death



A Hyrum man was charged Monday in 1st District Court with aggravated murder, a 
capital offense eligible for the death penalty, in connection with the death of 
a missing California woman.

Stacy Robert Willis, 41, was arrested at gunpoint in the parking lot at 
Ridley's Marketplace on Friday after law enforcement officers discovered the 
woman's remains in a shallow grave near Blacksmith Fork Canyon in an 
investigation that led them to Willis.

The woman, 37-year-old Merrilee Cox-Lafferty, went missing in August, just one 
day after arriving in Cache Valley.

According to a probable cause statement, she arrived in Cache Valley on Friday, 
Aug. 17, and spent the night with Willis at his home that night, and she was 
last seen with him the next day. Last week, a Logan man told police that Willis 
brought Cox-Lafferty to his home on Saturday, Aug. 18, and while they were 
there, there was some argument between the 2 over dealing drugs. The man said 
he told Willis to get her to stop screaming because he didn't want any trouble 
in his apartment complex, the court record states.

Willis allegedly said he and Cox-Lafferty were driving to Boise, and he 
returned alone about 4 hours later with the news that he "took care of the 
problem," prompting his friend to ask what happened. It was then that he 
reportedly told the other man that Cox-Lafferty backed his SUV into a tree, and 
he pulled her from the vehicle and beat her to death.

According to Cache County Chief Deputy Attorney Tony Baird, Willis was charged 
with aggravated homicide based upon a prior conviction of felony discharge of a 
firearm, stemming from a dispute with another man in the North Logan Walmart.

The aggravated factor makes the alleged murder of Merrilee Cox-Rafferty a 
capital offense and gives prosecutors the ability to seek the death penalty. 
Baird said that decision has not been made at this point.

Aggravated murder carries a possible sentence of either 25 years to life, or 
life without parole unless prosecutors file a motion to seek the death penalty.

Attorneys Shannon Demler and Mike McGinnis were appointed to represent Willis 
in this case, and they will return to court with Willis on Oct. 1 for a 
pretrial conference.

Until then, he will remain in the custody of the Cache County Jail, without 
bail.

(source: HJnews.com)








USA:

The Machinery of Death Is Back on the Docket----2 Supreme Court cases this fall 
pose hard questions about the death penalty.

"From this day forward," Justice Harry Blackmun announced in 1994, "I no longer 
shall tinker with the machinery of death." Blackmun had voted to restore the 
death penalty and even to approve mandatory death sentences. But after 25 
years, he said, "I feel morally and intellectually obligated simply to concede 
that the death penalty experiment has failed ... the problems that were pursued 
down one hole with procedural rules and verbal formulas have come to the 
surface somewhere else, just as virulent and pernicious as they were in their 
original form."

Another quarter-century has passed, and the machinery of death chugs on, 
patched with judicial duct tape and legislative Crazy Glue. States have adopted 
new "more humane" execution methods (which sometimes require them to acquire 
lethal drugs on the black market); Congress has made it nearly impossible for 
federal courts to help most state death defendants. The Supreme Court, 
meanwhile, has refined the rules about who can be executed (barring, for 
example, prisoners with intellectual disability) and who can impose a death 
sentence (juries, not judges, must find "aggravating factors" in a defendant's 
offense).

The Supreme Court tries to stop executions of the mentally disabled

But "use of capital punishment is declining in America," the University of 
Virginia law professor Brandon Garrett and co-author Ankur Desai wrote in a 
recent study. "Death sentencing has fallen to a modern low and executions are 
increasingly rare." 26inmates were executed last year, 16 so far in 2018. 
Meanwhile, courts in 2017 sentenced 39 defendants to death. More than 2,700 
defendants wait on death row-and the backlog is growing.

2 cases this fall may require the Supreme Court to tinker further. Madison v. 
Alabama, to be argued on October 2, asks whether states can execute demented 
murderers who no longer remember their crimes; Bucklew v. Precythe asks when, 
if ever, a prisoner's individual physical condition makes execution by lethal 
injection "cruel and unusual."

Vernon Madison murdered an Alabama police officer in 1985. The state twice 
procured death sentences by using unconstitutional tactics - 1st, excluding 
blacks from the jury and, 2nd, sneaking improper evidence into the record. 
After a 3rd trial, the jury recommended life in prison, but the trial judge 
imposed a sentence of death. That sentence was affirmed by state courts in 
1998; Madison then filed federal challenges, which were finally rejected in 
2015.

Meanwhile, Madison's health collapsed. After a series of strokes, he is now 
unable to walk, and is also incontinent, legally blind, and so demented that he 
cannot recite the alphabet or rephrase a simple sentence. Perhaps most 
important legally, he can no longer remember the crime he committed, though he 
does understand that the state plans to execute him for murder.

Madison's legal team - led by Bryan Stevenson of the Equal Justice Initiative - 
argues that "No penological justification or retributive value can be found in 
executing a severely impaired and incompetent prisoner."

Alabama's response is that the goals of capital punishment - retribution for 
the wrong and sending a warning to possible future offenders - are served as 
long as Madison knows why he is being executed, even if he doesn't remember 
committing the acts. Madison's particular condition may have been verified by 
doctors, the state argues, but dementia has many causes. Future claims of 
dementia and memory loss will be too easy to fake.

The high court has already held that states may not execute the mentally ill or 
the intellectually disabled; the leap to the demented would seem inevitable. 
But Justice Anthony Kennedy, the force behind these limits, has left the court, 
and death jurisprudence, as of the 1st Monday of next month, will likely be 
more volatile than usual.

Will the Supreme Court make an 11th hour intervention in Georgia?

In November, the court will take up the case of Russell Bucklew, whom the state 
of Missouri seeks to execute for the 1996 murder of Michael Sanders. Sanders 
had given shelter in his trailer to Stephanie Ray, Bucklew's former girlfriend, 
and her children. Bucklew stalked Ray and burst into the trailer with a 
shotgun. He killed Sanders and abducted Ray; she was freed only after a police 
chase and shootout in which she was wounded. While Bucklew was awaiting trial, 
he escaped from a local jail and attacked Ray's mother and her fiance with a 
hammer.

In the current case, Bucklew doesn't contest his guilt, nor does he claim that 
Missouri's lethal-injection protocol is in itself "cruel and unusual." His is 
what lawyers call an "as applied" challenge. What that means is this: Though 
lethal injection may pass muster for most executions, he argues, in his 
individual case, because of his unusual physical condition, the injection will 
cause him intense and intolerable pain. He suffers from a rare medical 
condition call cavernous hemangioma. The condition has given rise to multiple 
blood-filled tumors in his head and mouth. These make it difficult to breathe 
and are prone to bloody rupture. He must sleep sitting up to avoid choking on 
his own blood. Being strapped flat to a gurney will subject him to suffocation, 
he argues. In addition, since his blood vessels are affected, he says, those 
administering the drugs will probably have to use a lengthy and painful 
procedure called a "cutdown" before the drugs can be administered, prolonging 
the agony. The Eighth Circuit rejected his petition for habeas corpus relief. 
The appeals court relied on a 2008 Supreme Court precedent, Baze v. Rees. In 
Baze, a court plurality held that prisoners who challenge a method of execution 
must show the court an alternative method of execution that imposes less risk 
of unnecessary pain. Bucklew argued that this requirement might make sense in 
the case of prisoners without special medical conditions. It shouldn't apply, 
he said, in "as applied" challenges. In other words, there could easily be 
prisoners in such poor health that no method of execution would be humane.

The inhumanity of the death penalty

Nonetheless, Bucklew did offer an alternative already provided in Missouri law 
- a gas chamber filled with nitrogen gas, which would render him unconscious 
and then dead without the agony of suffocation. The Eighth Circuit said that he 
did not prove the gas chamber would be better. The court below had heard from 2 
expert witnesses - 1 who described the agony of lethal injection and another 
who stated that gas would kill him more quickly. A trial court could compare 
the 2 descriptions and reach its own conclusion about relative agony. Not good 
enough, said the appeals court; Bucklew was required to provide 1 expert who 
would offer "comparative testimony" - in effect, a single witness to say that 1 
method is less cruel than another.

Finally, Bucklew asked the court to allow his lawyers to submit questions to 
the two prison personnel - their names are shielded by state law and they 
cannot be medical professionals - who will administer the injection, to 
determine whether they have the knowledge and skill to perform it without 
unnecessary agony. The appeals court rejected that as well: "we will not assume 
that Missouri employs personnel are incompetent or unqualified to perform their 
assigned duties," the panel said.

In general, the Eighth Circuit opinion turned Bucklew into a kind of legal 
Sisyphus; as each boulder was pushed to the top, the court sent it back down to 
the bottom with a new requirement. He has asked the court to look at all 3 
rulings - on "as applied" challenges, on the need for a single witness, and on 
the odd "assumption" that prison personnel are competent. In addition, he will 
argue that the testimony he did present met the burden of showing that lethal 
gas would be a more humane method of death.

The Bucklew case, however it is resolved, shows how fully the court has become 
enmeshed in the sordid details of official killing. As the population of death 
row ages, issues of age-related disease and dementia will become more important 
in assessing individual death warrants, and the court will be the last stop for 
those challenged.

The court seems likely to be hostile to prisoners??? claims, however. In recent 
years, when the high court stepped in to halt executions, Justice Anthony 
Kennedy was usually the deciding vote. Kennedy will almost certainly be 
replaced by Brett Kavanaugh. Kavanaugh is formally an unknown on the issue. His 
conservatism in general, however, is orthodox, and conservative orthodoxy is 
hostile to new claims that executions are "cruel and unusual."

During oral argument in a 2015 case, Justice Samuel Alito complained that 
opponents had waged "guerilla war" against the death penalty. The late Justice 
Antonin Scalia once said that prisoners sentenced to death were the lucky ones: 
"The capital convict will obtain endless legal assistance from the abolition 
lobby (and legal favoritism from abolitionist judges), while the lifer 
languishes unnoticed behind bars."

This judicial truculence is unbecoming; but it can perhaps be understood. The 
question of capital punishment is usually phrased as whether the Eighth 
Amendment "permits" states to conduct executions. But there is a long-lived 
strand of Western moral thought that argues that the death penalty is not 
simply permitted but required in a just society; to eschew execution, this 
argument goes, is to overvalue the lives of murderers and undervalue the lives 
of their victims.

I saw a trace of that idea in Baze v. Rees, when Chief Justice John Roberts 
wrote for a plurality of the Court that "capital punishment is constitutional. 
It necessarily follows that there must be a means of carrying it out." This 
enthymeme rolls easily off the pen, but it is not valid; Roberts calls to mind 
St. Anselm of Canterbury, who argued in the 11th century that, because humans 
can imagine a perfect being, it necessarily follows that such a being - God - 
must exist.

Inspired by the asserted blessing of the Constitution, Roberts imagines a 
coherent institution called "capital punishment" can be administered humanely 
to those who deserve it. If such a system exists, the logic would run, then for 
guilty killers to resist it is simple contumacy.

But recent botched executions - prisoners choking and convulsing, or strapped 
to the gurney for as long as two hours while prison techs tried to find a vein 
- underscore what should be obvious. There is no "capital punishment," no 
machinery of death, that stands apart from the ad hoc efforts of ordinary 
mortals to improvise the killing of fellow humans, whose bodies quite naturally 
fight for life up to and beyond the last agonizing breath.

(source: Garrett Epps, The Atlantic)