Two years ago today, the U.S. Supreme Court unexpectedly accepted a case, Baze v. Rees, challenging the constitutionality of lethal injection — the supposedly humane execution method that seemed less and less so.
Texas inmate Michael Richard, condemned for raping and murdering Marguerite Dixon in 1986, was slated to die that very evening, also by lethal injection.
As Richard’s Texas Defender Service lawyers scrambled to prepare a last-minute legal challenge based on the pending Supreme Court case — for how could Texas carry out a procedure whose constitutionality was in question? — they tripped over an unexpected stretch of red tape that ultimately claimed their client’s life:
The Texas Court of Criminal Appeals closed at 5 p.m. on the day of the scheduled 6 p.m. execution, and refused to accept an appeal filed a few minutes after 5.
This bizarre situation, complicated by the fact that the Lone Star State did not have written rules for handling last-minute appeals (it does now), has a thicket of procedural detail best appreciated by lawyers.
Keller, who has what you might say is an inordinate regard for “finality” (and for prosecutors), has herself been forced to defend her conduct in hearings of the State Commission on Judicial Conduct. Those hearings could result in her removal from the bench over this incident; a decision is expected soon. (Update:She skated.)
Though it was not completely clear for a few more weeks, it was in fact true that the pending Baze decision suspended the death penalty in the United States. As a result, Michael Richard — whose execution would have been stayed had the appeal entered the judicial system — was the last American put to death until May of 2008.
Minutes before he was to die this day last year, the lethal injection of Mississippi murderer Earl Wesley Berry was stayed by the Supreme Court — the signal that it had imposed a de facto moratorium on executions while it considered the constitutionality of lethal injection.
Condemned to die for kidnapping and beating to death Mary Bounds in 1987, Berry was your basic unappealing death row case with no particular issue either substantive or technical likely to help him out in the courts.
Luckily for Berry, the fundamental issue of whether whether the lethal injection regime used in Mississippi and in most of the United States was cruel and unusual punishment had reached the high court at just time time.
Also luckily, the phone lines were open: Berry got his reprieve with about 15 or 20 minutes to spare.
Berry’s stay finally clarified a few weeks of uncertainty that prevailed after the Court took last year’s lethal injection challenge, Baze v. Rees.
Could executions still go forward while lethal injection was under review? Would the holdup be limited to Kentucky, where the appeal originated? Was there any manner of case-by-case flexibility?
But Earl Wesley Berry’s luck was only about seven months long: he was executed on May 21, 2008, the second prisoner put to death after the moratorium expired upon the Court’s rejection of Baze.
The debacle in Florida has been a microcosm for the nation. Lethal injection as an execution protocol was by this time last year already facing growing scrutiny. It was immediately apparent that Diaz’s execution could spell serious trouble for the American death penalty’s legal machinery.
And indeed that machinery has now ground to a halt, if only a temporary one. Facing judicial confusion, the Supreme Court is weighing a potential landmark case on the constitutionality of lethal injection, with actual executions — at least involuntary ones — under a de facto moratorium for months yet to come.
Texas inmate Michael Richard, condemned for raping and murdering Marguerite Dixon in 1986, was slated to die that very evening, also by lethal injection.
Condemned to die for kidnapping and beating to death Mary Bounds in 1987, 
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