High Court Allows Lethal-Injection Challenges

Los Angeles Times legal affairs correspondent David Savage explains a unanimous Supreme Court decision on lethal injection. The ruling gives death row inmates an additional legal avenue to challenge the use of lethal injection.

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NEAL CONAN, host:

Two rulings today from the U.S. Supreme Court involving the death penalty. In one decision, the court allowed death row inmates to file last-minute challenges to lethal injection. In a second decision, the justices made it easier for death row inmates to challenge their convictions with new evidence.

Joining us now from his office here in Washington, D.C., is David Savage, legal affairs correspondent for the Los Angeles Times. David, good to have you on the show, as always.

Mr. DAVID SAVAGE (Legal Affairs Correspondent, Los Angeles Times): Hi, Neal.

CONAN: Let's start with the lethal injections. Remind us briefly of the details of this case.

Mr. SAVAGE: Well, about a year ago, the Lancet - the British medical journal - had a study of several doctors, saying that men who have been executed in the United States may well have suffered excruciating pain that was to some degree masked by the anesthesia - that they didn't get enough anesthesias to actually give them a painless death.

There are these other drugs that are administered, that apparently shut down your heart and your lungs. And the suggestion was - these people are suffering excruciating pain.

So, a lot of lawyers who represent men facing execution went to court and said, you, judge, should stop this execution and consider our claims. A few judges did so, including in California. Some judges said, no, sorry, we can't because the Supreme Court had said in a lot of decisions over the last decade that federal judges should not reopen old cases on the eve of an execution.

Supreme Court said today, yes, you should reopen such - you should hear such a claim on the eve of an execution. They didn't actually decide whether these lethal injections are painful. They just told federal judges, you ought to hold a hearing and decide this issue.

CONAN: And this was on merely the eve of an execution. The plaintiff, the prisoner involved, already had the devices strapped into his arm.

Mr. SAVAGE: Yes. That's right. It was a last-minute intervention by the U.S. Supreme Court saying this claim should be heard and decided before this person is put to death in this way.

CONAN: We're talking about Supreme Court decisions with David Savage of the Los Angeles Times. You're listening to TALK OF THE NATION from NPR News.

And David, this was unanimous decision by the Supreme Court. Yet, it took - it acknowledged the complaint by many people in the justice system, as saying there are already too many delays before executions are carried out.

Mr. SAVAGE: Well, you can guess it was unanimous because it was narrow. That is, a lot of the decisions said, we're not saying there should be long delays here. We understand - we don't want a lot of these last-minute claims.

But nonetheless, this is one that should be heard and should be settled. It's not going to take 200 hearings. Somebody - it seems to me some doctors will figure out that you just ought to use more of the anesthesia.

And I think this will be resolved fairly quickly. So, the court's decision says, yes, go ahead and resolve this. But it's really not going to be an impediment to carrying out executions.

CONAN: And another decision, this one was a divided court, 5-3 decision, and this involves an inmate convicted some years ago who wanted to introduce new evidence from death row of DNA that he says clears him.

Mr. SAVAGE: Yes, a similar theme, Neal, in that the issue, again, is the court had said federal judges should not reopen old cases. And this is another one where the Supreme Court, as you said, on a 5-to-3 vote, said there's an exception for reliable new evidence.

If you have reliable new evidence - comes to light, and a judge can look at it and say, you know, if the jury had heard this at the time of the trial, they probably wouldn't have convicted this person.

In that kind of case, Justice Kennedy said they're rare, but that a federal court should reopen an old death row case and sort of rehear the evidence. I think this actually may have more of an effect on more cases around the country than the ruling on lethal injections.

CONAN: Yes. And I think were some states - I think it was Virginia, in fact, that said new evidence, fresh evidence of innocence, is not acceptable.

Mr. SAVAGE: That's right. A lot of federal judges have said this is - once we, once the person's initial round of appeals have been heard, we, in the federal courts, have no role to, you know, reopen cases.

And again, the Supreme Court is saying, yes, you do, in this narrow category of cases. I think it's an example of the Supreme Court never really wants to close the door in a death penalty case and say, no, you can't reconsider new evidence.

CONAN: Yes. These are - again, we're coming to the end of the first term, which is, of course, under the new Chief Justice John Roberts; joined mid-way through by Samuel Alito, as Sandra Day O'Connor finally left the court. Have you been able to notice any difference?

Mr. SAVAGE: Not much so far. Roberts has managed to get a lot of unanimous decisions. But they are sort of the character, on the one we were talking about the lethal injection case, they sort of narrowly resolve the issue before the court, without creating big waves.

Where the court's been divided, Roberts has almost always been on the conservative side of the divide. For example, he would - he dissented in the DNA case. He said he wasn't convinced, that there was plenty of other evidence showing this guy's guilt. And he wasn't convinced that any juror would have voted differently.

So, I think our general view is pretty conservative but it's still early.

CONAN: Jury's still out? I guess you didn't want to go that far, David. In any case, we still have a couple of important cases still to come down, cases that are unlikely to be unanimous.

Mr. SAVAGE: That's right. The biggest one probably is this case involving Hamdan. It's a Guantanamo case that concerns the military tribunals that sort of rules whether the Bush administration's rules will apply or whether the court will say there are some other Geneva Convention rules.

That case, by the way, John Roberts is not going to vote in because he was on the case when it was in the appeals court. So, we won't get much from John Roberts about that.

But I think you're correct to say that it will probably be divided.

CONAN: David Savage, as always, thanks very much for being with us today.

Mr. SAVAGE: Thank you, Neal.

CONAN: David Savage, legal affairs correspondent for the Los Angeles Times joined us today from his office here in Washington, D.C.

This is TALK OF THE NATION from NPR News. And I'm Neal Conan, NPR News, in Washington.

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