December 01, 2019

Supreme Court’s Shifting Framework on Warrant Litigation Adds New Challenges for Capital Prisoners

One of the most contentious issues in death penalty litigation is the length of time prisoners’ legal appeals typically take to conclude. Increasingly, the courts have the impression that death row prisoners file “frivolous” legal claims solely to delay the inevitable execution of sentence. Although these two issues are not interchangeable—the amount of time capital cases typically take to be resolved is as much due to delays in adjudication as it is to the filing of the claims themselves—general impatience over the length of time these cases can take has begun to shape the way death row prisoners’ legal claims are substantively analyzed.

Litigation of Claims in Cases with a Pending Execution Warrant

In 2019, capital jurisprudence has evolved to make it even more difficult for prisoners under execution warrant to receive in-depth review of their legal claims. Over the course of four decisions issued by the U.S. Supreme Court during the spring of 2019—Dunn v. Ray, Murphy v. Collier, Bucklew v. Precythe, and Dunn v. Price— the Court grappled with the question of how proximity to a prisoner’s execution date should preclude consideration of substantive claims of constitutional error.

The first of these cases that the Court decided, setting the stage for those that followed, was Dunn v. Ray. Domineque Ray, a devout Muslim, was set for execution in Alabama on February 7, 2019. After being notified in November 2018 that an execution date had been set, he requested that his imam be present under a state statute that allows the “spiritual advisor of the condemned” to be “present at an execution.” On January 23rd, the prison denied the request, citing prison policy that only authorized personnel could be in the execution chamber and that the only authorized spiritual advisor was the Christian chaplain. Mr. Ray filed his appeal on January 28, 2019, which lost in district court on the grounds that he had waited too long to bring the challenge. The district court’s decision was then overturned by the U.S. Court of Appeals for the Eleventh Circuit, in a lengthy opinion concluding that the state policy likely violated the First Amendment and that the claim was not untimely. The State appealed this decision to the U.S. Supreme Court, which overturned the Eleventh Circuit opinion, allowing the execution to proceed within minutes of the decision. As the sole justification for its reversal, the Court’s brief order noted that Mr. Ray “waited until January 28, 2019 to seek relief” from his February 7th execution and that “[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” Writing in dissent, Justice Kagan, joined by three other members of the Court, found that Mr. Ray’s request was timely. Based on the statutory language specifically allowing a prisoner’s spiritual advisor to be present for the execution, the dissent found that Mr. Ray had no reason to suspect that his request would be denied prior to the notification by the prison on January 23rd, which formed the basis for his subsequent appeal. The dissent found that Mr. Ray put forth a “powerful claim that his religious rights will be violated at the moment the State puts him to death.” Arguing that the majority’s decision was made simply so that the “[s]tate […could] meet its preferred execution date,” and “[g]iven the gravity of the issue presented,” the dissent concluded that the majority’s decision was “profoundly wrong.”

A little over a month later, Patrick Murphy, a Buddhist death row prisoner in Texas, raised a similar claim concerning access to a spiritual advisor in the execution chamber. In this case, the Court granted the stay, with Justice Kavanaugh as the deciding vote. Attempting to distinguish Murphy and Ray, Justice Kavanaugh reasoned that Mr. Murphy’s claim was brought “a full month” prior to his execution date, as opposed to two weeks prior, as in the case of Mr. Ray.

In April the Court issued its opinion in Bucklew v. Precythe, which dealt with a question seemingly unrelated to litigation delays—namely, an as-applied challenge to a method of lethal injection—only to again return to the disagreement over the ruling in Ray. Responding to Justice Breyer’s dissent in Bucklew, which argued that “ending delays” in death penalty cases at the expense of constitutional protections would force the Court to pay “too high a price,” the majority again stressed that “last-minute stays should be the extreme exception, not the norm.”

After the Bucklew decision, the Court dealt with the question of delay once more, overturning a circuit court stay based on timeliness concerns to allow Alabama prisoner Christopher Price’s execution to move forward. Justice Breyer issued a lengthy dissent, again taking the majority to task for short-circuiting review of potentially meritorious claims solely in favor of expediency. Justice Breyer wrote, “to proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system.”

The disagreement back and forth between the justices has made clear that any perceived delay in seeking a stay of execution may weigh strongly against the prisoner. Even with full awareness of this risk, filing a legal claim far in advance of an execution date is often not so simple in practice. Lawyers have an ethical and professional obligation when representing a client under execution warrant to bring any and all possible legal challenges that may result in a stay. In addition, many of the issues that are being challenged in so-called “eleventh hour” filings are only ripe once an execution date has been set. For example, challenges to a state’s method of execution under the Eighth Amendment are typically not cognizable in court until the prisoner is in fact facing execution.

The Court's Great Divide

The Court's Great Divide

Innocence Claims Under Warrant

This increased judicial scrutiny of claims brought while execution warrants are pending may also have the effect of providing states, which have the power to set execution dates, with an unintended litigation advantage. Under the U.S. Supreme Court’s most recent line of capital cases, a state’s decision to set an execution date may significantly alter the framework under which the prisoner’s legal claims are resolved, increasing the difficulty of obtaining substantive relief and decreasing the chances that any court will even hear the merits of the claim. This fact is especially concerning in the context of cases raising innocence claims, where the prisoner’s execution might result in the ultimate injustice.

This year in Florida, Georgia, and Texas, execution dates were set for prisoners with compelling claims of innocence, even though legal proceedings for each were underway in the courts. In Ray Jefferson Cromartie’s case, attorneys were fighting for DNA testing in an effort to demonstrate that Mr. Cromartie was not the shooter of the gun used in the robbery/murder for which he had been sentenced to death. On the day of Mr. Cromartie’s execution, the Eleventh Circuit denied Mr. Cromartie a stay of execution. The court devoted considerable space in its opinion to pointing out that defense counsel were likely in possession of the evidence casting doubt on Mr. Cromartie’s guilt for years prior to raising the claim. This evidence involved various statements over several years exonerating Mr. Cromartie as the shooter and pointing instead to a co-defendant who himself admitted responsibility. Mr. Cromartie was subsequently executed.

In Florida and Texas, James Dailey and Rodney Reed similarly faced execution despite compelling evidence of innocence amassed over decades that they repeatedly sought consideration of in the courts. Mr. Dailey was convicted and sentenced to death based solely on co-defendant and informant testimony, all of which has been called into question in the years since his conviction. Mr. Dailey’s co-defendant signed an affidavit exonerating Mr. Dailey and admitting to being the sole perpetrator of the murder. In Mr. Reed’s case, by the time the Texas Court of Criminal Appeals last ruled against him in July 2019, attorneys had undermined every piece of forensic evidence used to convict him and developed significant evidence of an alternate suspect. Nevertheless, despite the fact that both prisoners were pressing innocence claims that had not yet been fully exhausted in the judicial process, both states set execution dates. In Mr. Dailey’s case, the state set an execution date even before the state supreme court had decided his actual innocence petition. In Mr. Reed’s case, the state set an execution date the day after he lost a subsequent habeas petition in state court seeking to show innocence, even though that loss would typically have been appealed.

In October 2019, Mr. Dailey’s execution was stayed after a federal court found that new attorneys to his case were entitled to more time to investigate and possibly present a new petition on his behalf. The stay expires December 30, 2019, and does not itself give Mr. Dailey leave to file a subsequent federal habeas petition. Instead, it merely provides counsel with more time to investigate whether grounds for leave to file a subsequent habeas petition exist. But if the court finds that no grounds to file a subsequent writ are shown, the state will have the option to reissue an execution warrant for Mr. Dailey—once again significantly altering the legal landscape in which he will then have to litigate his innocence.

In Mr. Reed’s case, following an unprecedented advocacy campaign seeking to spare him from execution, the state parole board issued a non-binding unanimous recommendation for a 120-day reprieve. That very same day, the highest criminal court in Texas remanded his case to the trial court for full consideration of his claims of prosecutorial misconduct, false evidence, and actual innocence, all of which will now be evaluated during an evidentiary hearing that is expected to last several days and involve numerous witnesses. While Mr. Dailey and Mr. Reed have, for the time being, been spared, the Supreme Court’s recent jurisprudence concerning the evaluation of legal claims while an execution warrant is pending has added significant procedural challenges for capital prisoners and their counsel seeking to present serious claims of constitutional error.