[Deathpenalty] death penalty news----LA., S.DAK., CALIF., ORE., USA

[Rick Halperin]

July 10



LOUISIANA:

Kevin Daigle guilty of 1st-degree murder of State Trooper Steven Vincent



Kevin Daigle is guilty of 1st-degree murder of Louisiana State Trooper Steven 
Vincent.

The 12-person jury went into deliberations at 3:47 p.m. (Tuesday) and returned 
to court with a verdict at 4:05 p.m.

Daigle has been described as pure evil-- and the state successfully portrayed 
him as such: a mean, heartless, cold- blooded killer who thought nothing of 
gunning down Trooper Steven Vincent, a peace officer who, ironically, tried to 
help Daigle who appeared stranded on the side of the road. Calcasieu District 
Attorney John DeRosier says Vincent’s death has caused such suffering.

"He executed that policeman, a very fine young man, a very fine police officer, 
and look what it's done to his family. It's just devastated them, it's just 
devastated. He's got a large family, good family man, and there's just no 
reason for this. And we have to set an example," said DeRosier.

The jury began leaving the courtroom at 3:45 p.m. Tuesday and word came of a 
verdict scarcely 15 minutes later. Prosecutors say the actual time deliberating 
may have been as few as 3 minutes.

“We received the verdict at 4:03 and it took some time to get it to us so, it 
was a very short time they were out. Three to three and a half minutes,” said 
DeRosier.

Daigle attorneys put on an intoxication defense arguing Daigle was so drunk, he 
didn’t know or remember what he did.

But lead prosecutor Lea Hall said Daigle’s actions showed he knew exactly what 
he was doing.

"You've got it on camera, of him aiming and pointing a weapon at him and 
connecting on a man fleeing, a man trained on how to defend himself, and was 
able to score a hit. And further, when he stood over him and tried to rob him 
of his possessions and of his gun, his handcuffs, his keys, tried to steal a 
state police unit--that's what lets me know that he meant what he was doing," 
said Hall.

The jury remains sequestered for the penalty phase, when they decide if Daigle 
should get life in prison or be executed.

"I know what they should do, I know what is reasonable and appropriate in this 
case, even though I don't relish doing it. But I think the death penalty is in 
fact appropriate in this case," said DeRosier.

Defense attorneys declined to be interviewed after the verdict.

The penalty phase gets underway Wednesday morning in Lafayette.

For Daigle to receive a death sentence all 12 jurors must vote for execution.

A non-unanimous vote would result in life in prison.

Daigle was on trial for the 2015 shooting death of Vincent, who he killed 
during a traffic stop near Bell City.

The state rested its case Tuesday morning and the defense put on its side, 
starting with dash cam video and audio from inside the police car where Daigle 
was put after his arrest.

In the video the jurors could not see Daigle for upwards of an hour but could 
hear him him screaming at the top of his lungs, cursing, crying and pleading 
that he was hot and hurting and that he had been beaten.

Daigle was cuffed and maybe otherwise restrained, repeatedly pounding his 
fists, feet, or both in tandem, in the police car. There were periods of quiet 
when Daigle apparently fell asleep.

Then he’s heard pleading, “What did I do?” and saying he didn’t do anything.

Daigle was eventually transported to a hospital where he was swabbed for DNA 
and his blood tested to determine his blood alcohol level which, according to 
testimony, was around 0.2801.

(source: KPLC TV news)








SOUTH DAKOTA:

Brown County native to defend Iowa man against death penalty in federal court



A Brown County native is preparing to defend an Iowa man charged with murder 
and facing the death penalty.

Michael Lahammer is the defense attorney for Matthew Robbins, who is accused of 
fatally shooting a 51-year-old man during a robbery.

Lahammer said his client, Robbins, is accused of shooting James Booher while 
trying to rob him of methamphetamine and money in 2014. Booher went missing May 
31, 2014.

The trial will be held in federal court. Lahammer previously represented 
Robbins in a separate case, which is why a judge appointed him to represent him 
again.

"As a service to the court, I agree to take a certain number of court 
appointments that is less than half of my hourly rate," Lahammer explained. "In 
this case, I represented Mr. Robbins five years ago on his initial charges — we 
got a hung jury. We were preparing to retry to the case, and we came to plea 
terms to a lesser charge, and he's been serving a lesser sentence since that 
time. "

That was in 2014, when Robbins admitted to one count of being a felon and 
unlawful drug user in possession of a firearm as part of the plea agreement, 
Lahammer said.

The murder charges against Robbins were filed in June.

"Because I represented Mr. Robbins previously and we have a good relationship, 
the court asked if I'd represent him in this case. He was happy I was 
representing him again," Lahammer noted.

Lahammer said since the death penalty is on the table in this case, it could 
likely span 2 years before a trial is held.

The possibility of his client being sentenced to death is not lost on Lahammer.

"It accentuates what we already have on our shoulders. In the federal court 
system, your clients are looking at a lot of time. They're not going to receive 
a few years or five years. I've had clients that have life in prison or 20 to 
30 years," Lahammer said.

"The more criminal history they have the higher sentence they're going to 
receive. Anybody who practices in federal court has a lot on their shoulders 
because there's a lot at stake with prison time. With the death penalty you 
realize, it's in the back of your mind, that your client could be put to death 
ultimately," he said.

What sparked his passion for law was being involved in debate as a junior high 
school student in Aberdeen.

"Ever since junior high debate and that kind of activity really got me into the 
law and arguing. That's all I ever wanted to do was go to law school and be a 
lawyer," he said.

Lahammer is the first of his family to acquire a degree in law. He was raised 
on a farm near Bath and is a Northern State University alumnus.

"I have no relatives that are lawyers. My dad was a paint contractor and my mom 
was a housewife," Lahammer said proudly.

After graduating from high school, Lahammer served in the U.S. Marine Corps for 
12 years before resigning in 1988 to continue his education in Aberdeen.

"I fully intended to do four years and get out and go to college. I kept 
getting promoted with 12 years in. They were defunding the Vietnam era GI bill, 
so in 1988 I resigned my commission," Lahammer explained.

He credits the work ethic he learned while serving in the U.S. Marine Corps to 
being able to complete both degrees in a short period of time.

"I started Northern in January of 1989. I went year round at Northern into May 
of 1991 for my four year degree. I started in at the University of Iowa College 
of Law and went year round and finished my degree in 2 years 1 month,"

"I think the Marine Corps gave me the tenacity and discipline to get through it 
with my eye on the goal — which was finishing everything as close to 48 months 
as possible," Lahammer said.

While working towards his undergrad degree in business administration at 
Northern, Lahammer met his future wife.

"She's from the Roscoe area. We got married and moved to Iowa, and she 
graduated from Iowa's nursing program," Lahammer said of his wife, Lorna 
Bukaske.

After passing his bar exams, Lahammer worked within the the federal court 
system for 8 years before getting into a private practice in 2002.

Now a seasoned veteran in the world of law and order, Lahammer believes a 
degree in law can open up so many more doors than may be apparent.

"There are so many areas of law. You don't have to be a trial attorney, you can 
do administrative law, family law, mediation — so many areas that a law degree 
can open up for you that I would encourage anyone is interested," he said.

Now Lahammer is putting together a case for why the death penalty should not be 
sought for his client. While the work may be tedious, it's what Lahammer has 
always wanted to do.

"I've done everything from driving while intoxicated to murder and kidnapping," 
Lahammer said of the cases he has worked.

"In this last one we had well over 100,000 documents in relation to this death 
penalty case," Lahammer said. "It takes a tremendous amount of organization, 
but also I read every piece of paper so it's very time consuming, and it does 
involve weekends and late nights, but it's fascinating."

(source: Aberdeen News)








CALIFORNIA:

Death Sentence Recommended For Man Who Killed Ex-Lover & Cellmate----Convicted 
felon Rigoberto Villanueva stabbed his ex to death with a screwdriver in 
Whitewater and strangled his prison mate in Banning.

A Riverside jury Tuesday recommended the death penalty for a convicted felon 
who fatally stabbed his ex-girlfriend along Interstate 10 in Whitewater and, 
four months later, strangled his 82-year-old cellmate at the Smith Correctional 
Facility in Banning.

Jurors deliberated just over 3 days before unanimously recommending that 
42-year-old Rigoberto Villanueva of Fontana receive capital punishment for the 
2016 killings of Rosemary Barrasa, 37, and Tom Carlin.

Last month, the same jury convicted Villanueva of 2 counts of 1st-degree murder 
and found true a special circumstance allegation of taking multiple lives, 
making the defendant eligible for a death sentence.

Riverside County Superior Court Judge Mac Fisher scheduled a sentencing hearing 
for Sept. 20 at the Riverside Hall of Justice.

According to prosecutors, the 6-foot, 2-inch, 300-pound defendant had been in a 
relationship with Barrasa in the late 1990s, and in the fall of 2015, he 
persuaded her to join him at his brother's residence in Salida, Northern 
California.

Deputy District Attorney Anthony Orlando said the defendant and Barrasa lived 
together at the property over the ensuing six months, and during that time, 
Villanueva became abusive, inflicting injuries to the victim's arms and legs 
and cutting away some of her hair.

Barrasa left the property at the end of April 2016, heading to Fontana to stay 
with a friend. Within a week of her leaving, Villanueva went searching for the 
victim and arrived in the Inland Empire on May 7. Several days later, he 
located Barrasa at her friend's residence.

"The defendant expressed that Barrasa had his heart, which Barrasa responded to 
by laughing," Orlando said. "However, Barrasa seemed happy after talking with 
the defendant."

Despite being happy to see him, the victim told friends that she was concerned 
about Villanueva's behavior, and at least one witness recalled the woman 
hesitating to get into his car on the night of May 11, 2016, according to the 
prosecutor.

Shortly before 2 a.m. on May 12, Barrasa's body was located in Villanueva's 
sedan, which appeared to have crashed on eastbound Interstate 10, near Tipton 
Road, in Whitewater. She had been stabbed 34 times with a screwdriver, with the 
wounds patterned like an X across her upper body, according to Orlando.

California Highway Patrol officers encountered Villanueva a quarter- mile west 
of the scene, walking in the freeway center median. When they attempted to 
question him, the defendant took off running and resisted officers when they 
caught up to him, prompting them to deploy a Taser to gain control and handcuff 
him.

Villanueva was immediately jailed and charged with Barrasa's murder. He was 
paired with Carlin in Housing Unit 17 at the Smith Correctional Facility.

Other inmates described Villanueva as extremely moody and sometimes physically 
aggressive -- a deep contrast with Carlin, who was "happy-go- lucky" and 
generally liked by the men in his cell block, according to a trial brief 
prepared by the prosecution.

One inmate told sheriff's investigators that in the days leading up to Carlin's 
murder, Villanueva had suggested his cellmate was a child molester, even though 
the elder man was charged with felonious assault and making criminal threats -- 
not sexual offenses. Villanueva also conveyed to the same inmate that he wanted 
to "choke" Carlin.

The prosecutor said that on the afternoon of Sept. 17, 2016, Villanueva knotted 
a bed sheet and used it to strangle the victim, trying to make it appear as 
though the senior had hung himself while sitting on the bedside commode.

Villanueva was charged with the murder and was relocated to a high security 
unit at the Riverside jail.

(source: patch.com)








OREGON:

Oregon’s only woman on death row to get new trial: Judge says he’ll throw out 
her child-torture murder conviction



A judge is expected to throw out the 2011 aggravated murder conviction of 
Angela McAnulty, the only woman on Oregon’s death row, for the torture and 
starvation of her 15-year-old daughter, Jeanette Maples.

McAnulty should get a new trial because her attorneys failed to adequately 
represent or advise her during her trial, Senior Circuit Court Judge J. 
Burdette Pratt said in a draft ruling.

Pratt has yet to finalize and sign the ruling, but The Oregonian/OregonLive 
received a preliminary copy. The judge’s underlying finding isn’t expected to 
change.

Among major lapses cited by the judge: Defense attorneys Steven Krasik and 
Kenneth Hadley, both experienced capital punishment lawyers, made the highly 
unusual move of supporting McAnulty’s decision to plead guilty when the 
prosecution hadn’t agreed drop the death penalty as a possible punishment. 
After a 15-day trial to determine McAnulty’s sentence, 12 jurors unanimously 
chose the death penalty.

McAnulty is among 30 people on death row. Executions have been put on hold ever 
since then-Gov. John Kitzhaber instituted a moratorium in 2011. Gov. Kate Brown 
extended it during her tenure.

McAnulty’s case is one of the most notorious in modern Oregon history. Pratt 
noted the evidence was “particularly gruesome” and that even one of McAnulty’s 
trial attorneys “described it as the most indefensible case he had ever 
handled.”

According to prosecutors, McAnulty singled out Jeanette to beat and starve 
while allowing her other 2 children to sit at a table to eat dinner and watch 
TV or play video games. Prosecutors said Jeanette’s blood was found in every 
room in the house and that her mother used a vacuum cleaner to drown out the 
sound of the beatings.

The teenager suffered open wounds so deep that one of them exposed her hip 
bones, prosecutors said, and her only possession was a piece of cardboard she 
used for a bed.

The girl’s teachers and classmates in Eugene noticed she was skinny and always 
hungry. She later wrote a letter to a school official, saying she was denied 
food at home, forced to eat chili peppers and ordered to sit on her knees for 
long periods as punishment.

The Oregon Department of Human Services investigated by visiting the home, but 
found it well stocked and closed the case without taking action to protect 
Jeanette. The girl’s emaciated and battered body was found in the family’s home 
in 2009.

Her stepfather, Richard McAnulty, pleaded guilty to aggravated murder for his 
role in the death and was sentenced to life in prison with the possibility of 
release after 25 years.

In 2012, the state agreed to pay $1.5 million to settle a wrongful death 
lawsuit for the Department of Human Services’ failure to protect the teenager. 
Most of the settlement when to her biological father.

In 2014, the Oregon Supreme Court upheld McAnulty’s conviction.

In the draft ruling, Pratt wrote that McAnulty’s defense team was rushed in 
preparing for trial on Feb. 1, 2011. Less than 1 ½ months earlier, one of the 
defense attorneys and his investigator had finished a 114-day trial of a father 
and son who were convicted of killing 2 police officers in the 2008 bombing of 
a Woodburn bank.

The attorneys had asked a Lane County Circuit judge to postpone McAnulty’s 
trial, but were denied. Pratt found that the time crunch affected their ability 
to call skilled mental health experts who could have tried to counter the 
picture painted by the prosecution of McAnulty as a cold-blooded killer. 
Experts could have testified, for instance, how McAnulty’s parenting was 
affected by her own abusive childhood decades earlier and that her 
lower-than-average intelligence and mental illness affected her decisions, the 
judge said.

Such testimony could have shown that McAnulty was “not simply evil. ... Jurors 
were never provided with neuropsychological evidence to assist them in 
understanding the origins and causes of Petitioner’s behavior,” Pratt wrote.

According to previous coverage of McAnulty’s life, she lost her mother to 
murder when she was 5. After high school, she abused drugs while living a 
tumultuous life traveling around with a carnival worker. She had 3 children, 
but all were taken by California authorities because of abuse or neglect. 
McAnulty became a mother to 2 more children and ultimately was able to win back 
custody of 1 of her older children, Jeanette.

It’s unclear when Pratt will issue his final opinion granting McAnulty, now 50, 
a new trial. Portland defense attorneys Kathleen Correll, Bert Dupre and 
Gregory Scholl represented McAnulty in her case requesting post-conviction 
relief. They declined comment.

Representatives from the Lane County prosecutor’s office and the Oregon 
Department of Justice didn’t immediately respond to a request for comment.

Krasik, 1 of McAnulty’s original trial attorneys, said he’s relieved to hear of 
the judge’s draft opinion.

“This is a welcome step towards a fair and rational disposition of this tragic 
case,” Krasik said Tuesday in an email to The Oregonian/OregonLive. “I support 
any court decision that undoes Angela’s misguided, horribly disproportionate, 
death sentence.”

(source: oregonlive.com)








USA:

Lethal injection opinion from DOJ OLC threatens FDA's claims-based 
interpretation of 'intended use'



Introduction

In an opinion dated 3 May 2019, the Office of Legal Counsel (OLC) in the US 
Department of Justice (DOJ) concluded that an article intended to effectuate 
capital punishment by a state or the federal government is not subject to 
regulation by the Food and Drug Administration (FDA) under the Federal Food, 
Drug and Cosmetic Act (FDCA).

In reaching this conclusion, the OLC interpreted 'intended use' – a 
foundational doctrine in food and drug law – to include a product seller's 
knowledge of actual use and the "circumstances surrounding distribution" of the 
product. The OLC's opinion thus departs from the FDA's 2015 proposed rule 
interpreting 'intended use' under 21 CFR §§ 201.128 and 801.4. Because OLC 
opinions are binding on agencies such as the FDA, the opinion raises questions 
regarding the scope of regulated firms' liability under the misbranding and new 
drug and device approval provisions of the FDCA.

Background

In 2015 the FDA proposed to revise the existing regulatory definitions of 
'intended use' at 21 CFR §§ 201.128 and 801.4 by eliminating the knowledge 
prong of the definitions.(1) Industry – particularly the Medical Information 
Working Group (MIWG) –had urged this change through citizen petitions and 
litigation and supported the proposed revision.(2)

In its proposal, the FDA explained that changes to these provisions were needed 
"to reflect how the agency currently applies them to drugs and devices".(3) 
However, without notice that it was considering alternative approaches, the FDA 
finalised the rule in January 2017, replacing the knowledge prong with an 
entirely new sentence, creating a "totality of the evidence" standard.(4) 
Industry groups filed a petition to stay and for reconsideration, challenging 
the validity of the final rule and stating that the new definition of 'intended 
use' exceeded the FDA's authority under the FDCA and that the lack of adequate 
notice violated the Administrative Procedure Act.(5)

The FDA relented, first delaying the effective date of the rule(6) and then 
staying it indefinitely.(7) When then-FDA Commissioner Scott Gottlieb announced 
the delay, he stated as follows:

By delaying implementation of these portions of the final rule we are not 
creating new policy, but instead reverting to the agency's existing and 
longstanding regulations and interpretations on determining intended use for 
medical products. These are the same regulations and interpretations that have 
been in effect for decades.(8)

OCL's opinion

The OLC's opinion appears to have been issued as a result of litigation 
involving the FDA's obligation to block the entry of misbranded and unapproved 
drugs used under state lethal injection protocols. In 2011 death row inmates in 
Arizona, California and Tennessee challenged the FDA's exercise of enforcement 
discretion in allowing shipments of misbranded and unapproved sodium 
thiopental, which was to be used in executions, to enter the United States. The 
US District Court for the District of Columbia held that the FDCA obliged the 
agency to refuse admission and issued an injunction that blocked the FDA from 
releasing future shipments of unapproved or misbranded thiopental into the 
United States. In 2013 the injunction was upheld by the Court of Appeals for 
the District of Columbia Circuit and the DOJ declined to seek further 
review.(9)

In January 2017 the State of Texas sued the FDA regarding shipments of 
unapproved thiopental that the state had purchased from an individual doing 
business in India under the name Harris Pharma. Initially, the state sought an 
order compelling the FDA to take final actions on shipments that had been 
detained. After the FDA issued a final detention order in April 2017 (which 
cited Texas's submission that the imported thiopental "is a drug, because it is 
intended to affect the structure and function of the body"),(10) the state 
filed an amended complaint seeking the release of the drug.(11) That litigation 
has been stayed since December 2017 to allow the parties to discuss a possible 
resolution.(12)

The OLC opinion states that it was requested by the Attorney General. The key 
points relating to intended use are as follows:

"When a prison official seeks to purchase an article essential to one of these 
methods of execution, the seller will often know that the item will be used in 
an execution and is thus 'intended' to affect the structure or any function of 
the body." (Page 10, relying on structure and function prongs of statutory drug 
and device definitions and regulatory definitions of intended use.)

"We are not concluding that the FDCA covers only 'drugs' or 'devices' that have 
a medical or therapeutic purpose. For example, FDA has consistently regulated 
other products that affect the structure or function of the human body for an 
aesthetic, rather than medical or therapeutic, purpose (e.g., implants to 
augment breasts, dermal fillers to correct wrinkles, and silicone injections to 
augment buttocks and breasts). Likewise, FDA has long regulated drugs with 
non-therapeutic or recreational uses, including narcotics, street drugs, and 
their alternatives." (Page 24.)

The opinion also relies on the non-claims-focused elements of the regulatory 
definitions of intended use, including the "circumstances surrounding 
distribution" language and the language addressing temporally shifting intended 
uses.(13)

Overall, the opinion is not consistent with the claims-based interpretation of 
intended use and it departs from the approach set out in the FDA's 2015 
proposed rule.

Scope and implications of OCL's opinion

The scope and implications of the opinion are unclear. On the one hand, the 
interpretation of intended use could affect the liability of manufacturers in 
cases (eg, off-label promotion investigations) in which the FDCA's misbranding 
and new drug and device approval provisions are at issue. On the other hand, 
the opinion goes to some lengths to limit the scope of its analysis, stating 
that it does not address, for example, "whether [the] FDA has jurisdiction over 
drugs intended for use in physician-assisted suicide". There are strong indicia 
that the opinion will be limited in its practical effect to the specific 
question of the FDA's authority to regulate articles used in administering the 
death penalty, but nothing in the law or in FDA or DOJ policy would preclude 
the federal government (or the qui tam bar) from relying on the opinion to 
support an expansive reading of the intended use doctrine.

Footnote 1 of the opinion states that, in reaching its conclusion, the OLC 
"solicited and considered the views of FDA and of the Office of the Associate 
Attorney General". The footnote does not state precisely what position the FDA 
took. It has been reported that former FDA Commissioner Gottlieb and former 
Attorney General Jeff Sessions "had a heated argument" over whether execution 
drugs could enter the United States without FDA oversight.(14)

As previously stated, OLC opinions are binding on federal agencies such as the 
FDA.(15) As such, the agency has stated publicly that it will "follow the 
conclusion of the opinion to the extent permissible" under the existing 
district court injunction in Cook.(16)

OLC opinions generally are not subject to direct judicial review. However, 
their validity may be contested in litigation in circumstances where parties 
can establish that agency compliance with an OLC opinion adversely affects 
them.(17) It is thus possible that prisoners could, in appropriate 
circumstances, seek declaratory and injunctive relief against actual or likely 
importation of drugs intended for use in lethal injection and thereby challenge 
the validity of the OLC interpretation of the FDCA.

Endnotes

(1) 80 Fed Reg 57,756, 57,764-65 (25 September 2015).

(2) MIWG, Citizen Petition, Docket FDA-2013-P-1079, at 4, 15-19 (3 September 
2013).

(3) 80 Fed Reg at 57,756.

(4) 82 Fed Reg 2193, 2217 (9 January 2017).

(5) MIWG, PhRMA & BIO, Petition to Stay and for Reconsideration, Docket 
FDA-2015-N-2002-1977 (8 February 2017).

(6) See 83 Fed Reg 2092 (16 January 2018); 82 Fed Reg 14,319 (20 March 2017).

(7) 83 Fed Reg 11,639 (16 March 2018).

(8) Press Release, FDA, "Statement from FDA Commissioner Scott Gottlieb, M.D., 
on FDA Decision to Seek Additional Time to Reassess Rule that Would Have 
Changed Longstanding Practices for How the Agency Determined the ?Intended Use' 
of Medical Products" (12 January 2018).

(9) Beaty v FDA, 853 F Supp 2d 30 (DDC 2012), aff'd in part and vacated in part 
sub nom. Cook v FDA,733 F.3d 1 (DC Cir 2013).

(10) FDA, Admissibility Determination re: Thiopental Sodium Imported by the 
Texas Department of Criminal Justice (20 April 2017).

(11) Plaintiff Texas Department of Criminal Justice's second amended complaint 
for declaratory and injunctive relief, Tex Dep't of Criminal Justice v FDA, 
3:17-cv-00001 (SD Tex, 22 May 2017), ECF 36.

(12) Order Staying Case, Tex Dep't of Criminal Justice v FDA 3:17-cv-00001 (SD 
Tex, 4 December 2017), ECF 52.

(13) 21 CFR § 201.128:

The intent… may be shown by the circumstances surrounding the distribution of 
the article… It may be shown by the circumstances that the article is, with the 
knowledge of such persons or their representatives, offered and used for a 
purpose for which it is neither labeled nor advertised. The intended uses of an 
article may change after it has been introduced into interstate commerce by its 
manufacturer. If, for example, a packer, distributor, or seller intends an 
article for different uses than those intended by the person from whom he 
received the drug, such packer, distributor, or seller is required to supply 
adequate labeling in accordance with the new intended uses. But if a 
manufacturer knows, or has knowledge of facts that would give him notice, that 
a drug introduced into interstate commerce by him is to be used for conditions, 
purposes, or uses other than the ones for which he offers it, he is required to 
provide adequate labeling for such a drug which accords with such other uses to 
which the article is to be put.

See also 21 CFR § 801.4 (same, for medical devices).

(14) Laurie McGinley and Mark Berman, "Justice Department says FDA 'Lacks 
Jurisdiction' Over Death-Penalty Drugs", Washington Post (14 May 2019).

(15) See Arthur H Garrison, "The Opinions by the Attorney General and the 
Office of Legal Counsel: How and Why They Are Significant", 76 Alb L Rev 217, 
242-43 (2012/2013) (describing legal and historical support). See also Citizens 
for Responsibility & Ethics in Washington v US Dep't of Justice, 922 F.3d 480, 
484 (DC Cir 2019) (describing the OLC's views).

(16) Josh Gerstein, "FDA Can't Control Death Penalty Drugs, DOJ Says", Politico 
(14 May 2019).

(17) See, for example, complaint for declaratory relief, NeoPollard Interactive 
LLC v Barr, 1:19-cv-00170-SM (DNH 15 February 15 2019) (contesting the OLC's 
conclusion that the federal Wire Act applies to state lotteries); complaint, 
N.H. Lottery Comm'n v Barr, 1:19-cv-00163-PB (DNH 15 February 2019) (same).

(source: lexology.com)

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

Kavanaugh, Roberts Hold Death Penalty Power After Bitter Term



The gloves are off at the U.S. Supreme Court after a bitter death penalty term 
that could be a sign of things to come, with Chief Justice John Roberts and 
Justice Brett Kavanaugh now in control of how hard a line the post-Anthony 
Kennedy court will take in capital cases.

With swing vote Kennedy out and Kavanaugh in, a more solidly conservative bloc 
is taking an austere stance toward death row prisoners’ efforts to halt their 
executions, while states seek to carry out what they see as long delayed 
justice.

Though capital punishment has been a hot-button issue at the court for years, 
it was particularly fraught this term, with liberal frustration showing in 
late-night dissents over what they see as rushes to the execution chamber, and 
conservatives equally frustrated with what they see as unwarranted delays and 
misplaced prioritizing of convicts’ pain at the expense of victims.

It’s a long-simmering tension on the court that “reached a full-boil” this 
term, said Dale Baich, a capital litigator at the Arizona federal public 
defender.

Bernard Harcourt, another capital litigator and a Columbia law professor, said 
that he’s “concerned that these new frictions at the Court may break bad, at 
the expense of the condemned and their constitutional right to be heard without 
the taint or shadow of this emerging bitterness.”

But against this bitter backdrop Roberts and Kavanaugh have emerged as the new 
middle, by occasionally voting for the condemned, or by issuing relatively 
moderate concurrences.

The New Middle

“For nearly 3 decades, Justice Kennedy served as a swing vote on the death 
penalty issues. Now, there seem to be five solid votes to uphold death 
sentences in almost every case,” said South Texas College of Law Houston 
professor Josh Blackman.

Still, during heated exchanges, Kavanaugh and Roberts have at times staked out 
relative moderate positions in contrast to the harder-line trio of Justices 
Clarence Thomas, Samuel Alito, and Neil Gorsuch.

One of the court’s most controversial rulings of the term was a solid 5-4 split 
along ideological lines, but Kavanaugh would write a concurrence in a factually 
similar case later.

In February, Alabama death row prisoner Domineque Ray wanted his imam with him 
in the death chamber, but the state only offered a Christian minister who was 
on the prison staff.

A court divided along ideological lines gave the green light for Ray’s 
execution without an imam, citing what it said was the last minute nature of 
the request.

Justice Elena Kagan wrote the dissent for the liberal bloc, calling the state’s 
practice discriminatory and the majority’s move “profoundly wrong.”

Ray’s execution sparked condemnation “from the entire political spectrum,” said 
Robert Dunham, executive director of the Death Penalty Information Center.

In a similar case the following month, the high court granted a stay to 
Buddhist prisoner Patrick Murphy. Thomas and Gorsuch noted at the time that 
they would have ruled against him.

Kavanaugh wrote a concurrence siding with Murphy, but observing that the state 
of Texas could just deny ministers to people of all faiths. The state later 
took him up on that offer, changing its practice and barring all faith 
ministers from the execution chamber.

The dispute sparked an unusual set of after-the-fact opinions weeks later, 
revealing that Roberts, alone among the conservatives, agreed with Kavanaugh’s 
approach.

Softening the Blow

Even in the strongest statement by the court that it was taking a hard-line on 
capital claims, Kavanaugh threw “quite a big bone” in the direction of death 
row inmates, said Deborah Denno, a death penalty expert at Fordham Law.

In April 1’s 5-4 decision in Bucklew v. Precythe, Gorsuch wrote the opinion 
against Missouri death row prisoner Russell Bucklew, joined by the conservative 
wing in full.

Bucklew argued the state’s preferred lethal injection execution method will 
cause a gruesome execution, due to a rare disease that will cause tumors 
growing in his head, neck and throat to rupture. He wants lethal gas instead.

But he can’t show the state’s method “superadds” pain to the death sentence, 
Gorsuch wrote.

Delay tactics were on the majority’s mind there, too, with the conservatives 
reasoning that condoning the longtime death row inmate’s argument would invite 
others to play games with litigation to avoid execution. “The people of 
Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them 
deserve better,” Gorsuch wrote.

The Bucklew case is “the defining moment for the Supreme Court in terms of 
cases that arise during death warrants,” Dunham said. He said the “emotional 
callousness” of the decision was shocking to many. It wasn’t that the court 
“recognized that executions may unintentionally be painful, it’s that it 
appeared to accept that executions could be unnecessarily cruel,” he said.

But Kavanaugh’s concurrence seemed designed to “soften the blow” of the ruling, 
Denno said.

Kavanaugh wrote to emphasize what he called the court’s “additional holding” 
that alternative execution methods don’t need to be authorized under current 
state law. It’s an issue that had been uncertain before Bucklew, he said.

It’s a point that “sort of got lost in the shuffle” and is “a pretty big bonus” 
to capital litigators, Denno said.

Still, Kavanaugh and Roberts fell in line with their conservative colleagues 
not just in cases like Bucklew but in another case later that month that laid 
bare the liberals’ frustration.

Death row prisoner Christopher Price raised a similar claim to Bucklew’s and 
the five conservatives overturned lower court stays in his favor, saying Price 
also waited too long to bring his claim.

An impassioned dissent from Justice Stephen Breyer for the 4 liberals called 
the majority out, leveling charges of arbitrariness and unfairness.

Breyer wrote that the majority acted in a way that “calls into question the 
basic principles of fairness that should underlie our criminal justice system. 
To proceed in this matter in the middle of the night without giving all Members 
of the Court the opportunity for discussion tomorrow morning is, I believe, 
unfortunate.”

Breyer’s discussion of the court’s internal procedures in his opinion was an 
“unorthodox step,” Blackman said. It’s “a signal that the progressive Justices 
are frustrated, and feel like they have no other choice.”

Meanwhile, capital defenders will continue the “recent trend of narrow, focused 
challenges” to the death penalty, “with an eye to appeal to the Chief Justice 
or Justice Kavanaugh,” Baich said.

Roberts peeled away in other death penalty cases this term as well, including 
casting a tie-breaking vote for an elderly Alabama prisoner with dementia, and 
for an intellectually disabled prisoner in Texas. Thomas, Alito, and Gorsuch 
dissented in both cases.

(source: bloomberglaw.com)