More From 11th Circuit On Lethal Injection And 1983
I posted about an earlier decision here. This one reaches the same result: The court finds that the inmate waited too long to raise the issue, so it evades the merits and dismisses the suit, leaving the state free to kill the inmate.
This opinion also slams the attorney:
The schedule we set provided that Rutherford’s opening brief would be due within 20 days from June 30, the date of our instructions; the State’s answer brief would be due within 14 days from receipt of Rutherford’s; and he then would have 7 days from receipt of the State’s brief to file a reply.
Rutherford filed his opening brief on the last possible day under the schedule; the State filed its answer brief several days early; and Rutherford did not file his reply brief when it was due. Instead, the day Rutherford’s reply brief was due we received a motion for a thirty-day extension.
One of the reasons his attorney gave for needing the extension was that she had taken an eight-day vacation in the midst of the briefing schedule. We denied her request for a 30-day extension but gave her one of twenty-three days, which resulted in her having a total of thirty days from receipt of the State’s brief to file Rutherford’s reply brief. Rutherford’s attorney waited until the last day of that extended period to file the brief, which resulted in completion of the supplemental briefing being delayed until September 1.
This is why it is better to be a judge then an attorney. When things like vacations, or golf, or dates with the federalist society, get in the way of work judges can just dismiss some cases, or else crank out some opinionless decisions. Attorneys, however, have to beg the judge for more time. Sarcasm aside, it’d be tough to come up with a meritorious reason for waiting until the day the brief is due to ask for an extension.
And that wasn’t the only misstep:
On September 22, 2006, the Governor of the State of Florida rescheduled Rutherford’s execution for the period from October 16 through October 23, 2006. In doing so the Governor noted that the warden had chosen October 18 at 6:00 p.m. as the specific date and time for the execution.
No one informed this Court or its Clerk of that development until September 25, which is the date that Rutherford filed a mandamus petition in the Supreme Court and provided our Clerk’s Office with a copy of it. The mandamus petition asked the Supreme Court to expeditiously order this Court to remand this case to the district court.
The request came despite the fact that Rutherford had never asked this Court to expedite its consideration of the case and his own attorney had delayed the completion of briefing and submission of the case to us for decision. Among other things, the mandamus petition she filed accuses this Court of “sit[ting] upon a capital case remanded to it,” and charges that “[t]he Eleventh Circuit and the Florida Attorney General have been the architects of the trap being set to ensnare Mr. Rutherford.” The mandamus petition does not disclose that the attorney who penned those allegations took a vacation during the briefing schedule, leading to a delay in submission of the case to us for decision.
A mandamus petition is something you file with a superior court that asks them to order (mandamus – mandare – to command) the lower court to do its job. It isn’t like an appeal, where the appellant says the court just made an error, this is basically saying the lower court is willfully refusing to do its job. Serious accusations. So if you’re going to bring out this heavy artillery, you ought to make sure you have first exhausted other options. Like, oh say, asking the lower court to do whatever it is you want before you file mandamus about whatever it is you want.
The rest of the opinion is more of the same stuff I discussed in the other post. All I’ll say now is that these cases are not as simple as they appear. It’s easy to dismiss these as “dilatory.” After all, the guy had been on death row for twenty years.
But until 2005, there were no serious studies that suggested lethal injection was actually a gratuitously painful way to execute someone. And until Scotus decided Hill v. McDonough last summer, the 11th Circuit would have summarily dismissed any 1983 claim that lethal injection was cruel and unusual punishment. So it’s really only been possible to raise these things for the last few months.
I see the other side as well, but I don’t think it would be overly burdensome on anyone involved for the courts to decide the merits of the claims.