FDA Files Appeal to Overturn Court Ruling Barring Use of Sodium Thiopental in Death Penalty Exections

The Food and Drug Administration has filed an appeal of the judicial opinion entered by U.S. District Judge Richard J. Leon for the District of Columbia that blocks the use of sodium thiopental in executions. 

In the decision, 21 Death Row inmates from a number of states won a fight to stop the use of sodium thiopental.  The drug had been okayed by the FDA as an anesthetic drug to be used before the fatal injection was used in the lethal injection method of execution. 

Judge Leon warned, in his opinion, that the FDA had created a "slippery slope" that would allow the use of untested drugs in executions.  He also had some serious language regarding the actions and intent of the FDA and after characterizing the drug at issue as "misbranded" and "unapproved," he banned its import as well as ordering any states with the drug in its execution drug inventory to forward that stock to the FDA.

State Attorneys General Ask U.S. Attorney General to Appeal Leon's Decision

In response, the attorneys general for over a dozen states wrote the U.S. Attorney General asking that Leon's decision be appealed to the appropriate federal appellate court for review. 

Read the Attorneys General letter to Eric Holder here.

Eric Holder, as the U.S. Attorney General, apparently agreed with these state AGs because now Leon's decision has been taken up for review.  


Raoul Cantero and Mark Schlakman Remind Us: ABA Recommendations Aren't Being Implemented in Florida

Recently, the Tampa Bay Times published a guest column by former Florida Supreme Court justice Raoul Cantero and Mark Schlakman, senior program director for the Center for the Advancement of Human Rights at Florida State University and board chairman for the Innocence Project of Florida. Schlakman also is a past member of the American Bar Association's Florida Death Penalty Assessment Team. 

Cantero and Schlakman periodically publish joint articles regarding Florida's death penalty practice.  See our prior posts discussing a few of them, including:

Here's an excerpt, we encourage you to read their latest column in its entirety: 

Challenging the status quo to promote fairness and impartiality in our justice system can be a daunting task even for legal practitioners. When Florida's death penalty process is at issue, the task can be further complicated because such efforts are often equated with being soft on crime or insensitive to victims' issues. . ..

More than five years ago, the American Bar Association released a comprehensive report developed by a team of eight Florida-based experts that raised serious concerns about Florida's death penalty process. . . . Few of its recommendations have been implemented. 

Peterson v. State of Florida: Florida Supreme Court Rules Florida Death Penalty Statute is Constitutional - Even if All the Jurors Don't Agree On Everything (Three Justices Dissent)

The opinion in the case of Peterson v. State of Florida was released this week, and in it the Florida Supreme Court summarily reviewed the argument that the death penalty statute passed by the Florida Legislature does not pass constitutional muster because Florida's death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). 

Federal Appellate Court Reviewing District Judge Opinion: Florida Scheme Is Unconstitutional

The same argument -- that the Florida death penalty scheme cannot meet the requirements of the United States Supreme Court opinion in Ring v. Arizona -- was held to be valid by a federal district court in Florida last summer.  You can read the opinion of U.S. District Judge Jose Martinez  here

Judge Martinez's decision is currently being reviewed by the Eleventh Circuit Court of Appeals; for details, check out our April 2012 post (with its links)

Florida Supreme Court Rules That Ring v. Arizona Is Met: Florida Death Penalty Statute Passes Test

In the majority opinion, after lengthy consideration of both the guilt and penalty phases of Peterson's trial, review is then given to the Ring v. Arizona argument with the following result:

... Whether the Court Should Reconsider Bottoson v. Moore and King v. Moore

Finally, Peterson asserts that Florida's death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002), because Ring requires a jury determination of facts relied upon to increase maximum sentences in the capital sentencing context and Florida's death penalty statute does not provide for such jury determinations. Specifically, he asks that this Court reconsider its decisions in Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002), and King v. Moore, 831 So. 2d 143 (Fla. 2002). We have consistently rejected claims that Florida's death penalty statute is unconstitutional. See, e.g., Baker v. State, 71 So. 3d 802, 823-24 (Fla. 2011), cert. denied, 132 S. Ct. 1639 (U.S. Feb. 27, 2012) (No. 11-8053); Darling v. State, 966 So. 2d 366, 387 (Fla. 2007); Frances v. State, 970 So. 2d 806, 822 (Fla. 2007). Peterson has not presented any argument that requires us to reconsider this precedent. Thus, we deny relief.

So, the Florida Supreme Court has ruled that its death penalty statute is just fine, thank you very much.  However, this was not an unianimous decision.  Nope.

Three Florida Supreme Court Justices Find Florida Isn't Meeting Ring v. Arizona Standard

Justice Pariente provides a dissent regarding the sentence, with which both Justices Labarga and Perry concur.  We provide her dissent in its entirety here:

I concur in affirming Peterson's convictions, but dissent as to his sentence because, based on this record, there is no unanimous finding by a jury that any of the applicable aggravators apply to this case. Peterson was sentenced to death following a seven-to-five jury recommendation absent any fact-finding as to which of the aggravators the jury found. None of the aggravators were aggravators that automatically demonstrate the jury has made the necessary findings to warrant the possibility of a death sentence, such as a prior violent felony or that the murder occurred while in the course of an enumerated felony that also was found by the jury. For the reasons explained more fully in my dissent in Butler v. State, 842 So. 2d 817, 835-40 (Fla. 2003) (Pariente, J., concurring in part and dissenting in part), I continue to believe that Florida's death penalty statute, as applied in circumstances like those presented in this case, is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). Whether our statute meets the requirements of the Federal Constitution will be an issue for the United States Supreme Court to decide. However, the fact that we do not require unanimity in fact-finding as to the aggravators necessary to impose the death penalty is, in my view, an independent violation of Florida's constitutional right to trial by jury.

Under our current sentencing scheme, not all defendants who are convicted of first-degree murder are eligible for a sentence of death. The trial judge must make additional findings before the death penalty can be imposed. See generally § 775.082, Fla. Stat. (2011). Without these findings, a trial court cannot impose a higher sentence than life imprisonment on the basis of the verdict alone. See § 775.082(1), Fla. Stat. (stating that without findings by the court that a defendant "shall be punished by death, . . . such person shall be punished by life imprisonment"). It is only after a sentencing hearing and additional findings of fact regarding aggravators and mitigators that the sentence of death may be imposed. Not only is this requirement imposed by Florida law, but it is constitutionally mandated by the Eighth Amendment to prevent death sentences from being arbitrarily imposed.

In addition, as interpreted by the United States Supreme Court in Ring, the Sixth Amendment requires that a jury find those aggravating factors. As Justice Scalia explained in his concurring opinion in Ring, the bottom line is that "the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by a jury." Ring, 536 U.S. at 610 (Scalia, J., concurring).

In Ring, the United States Supreme Court held that Arizona's sentencing scheme violated the Constitution—a scheme that was quite similar to Florida's in that under Arizona's prior statutory scheme, the maximum punishment allowed by law on the

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U.S. Supreme Court Denies Cert in Robbins v. Texas: What Happens When Trial Evidence is Known to be Scientifically Unsound? Apparently, Nothing.

At its conference last week (on May 10, 2012), the United States Supreme Court did what it always does: confers on petitions placed before it, and decides if they should be granted.  If you're interested, you can follow this process week after week as it is live-blogged over at scotusblog.com.

Of particular interest, the case of Robbins v. Texas, where the issue before the High Court is whether a new trial is required for a convicted defendant when scientific evidence is later determined to be unreliable.  In Robbins, the doctor who took the stand on behalf of the prosecution in the role of medical examiner, Dr. Patricia Moore, changed her opinion -- after the trial was over and the defendant sentenced to life imprisonment for capital murder of his girlfriend's baby.  (Thank God, there was no death sentence here - but this capital case and its due process arguments do impact on death penalty defense.)

Seems there are lots and lots of medical experts that have gone on the record in this case to state that it's not clear how this baby died ... and there may have been no crime here whatsoever.  But it's not just experts arguing about causation: here, the medical examiner who took the state for the State of Texas has changed her opinion about cause of death.  That's a big deal. 

No homicide.  Big mistake at trial, right? Another wrongful conviction ....

And yet, the Texas appellate courts haven't fixed this.  Here's the opinion from the highest criminal court in the State of Texas regarding Robbins' arguments.

From the amicus brief filed by the Innocence Project: (emphasis added)

First, the Texas appellate court’s decision turns the burden of proof on its head by requiring Petitioner to disprove an element of a crime – that the child’s death was the result of a homicide – in order to receive a new trial. Under this standard, Petitioner can not obtain a new trial because he can not prove that there was no crime, even though the central evidence at Petitioner’s trial that a crime occurred has been refuted by the very expert who originally offered the evidence. The Texas court of appeals has created a standard that is impossible to satisfy where – as here – forensic science can neither support nor disprove the conclusion presented to the

Second, the Texas appellate court failed to recognize that the conclusion presented to the jury at Petitioner’s trial – that, within a reasonable degree of scientific certainty, the victim had been murdered – was in fact false. Dr. Moore’s retraction of her trial testimony did not signify simply that she was less certain about whether Tristen’s  death was a homicide. Instead, it completely refuted the central evidence at trial that  a crime occurred by confirming that the results of the autopsy did not support any conclusion as to the cause and manner of Tristen’s death. Therefore, the scientific  conclusion that was presented to the jury was, as a matter of science, actually false.  The Texas appellate court’s decision requiring Petitioner to prove that homicide was not a possibility in order to show that the conclusion was false fails to account for the nature and role of scientific evidence.

Third, the Texas appellate court’s decision fails to account for the uniquely  persuasive impact of scientific evidence in criminal trials. Given jurors’ inclination to assign significant weight to scientific expert testimony, once Dr. Moore testified that Tristen’s death was caused by a criminal act, the jury likely focused on whether it was Petitioner who committed the crime, instead of whether a crime was committed at all.

And just as Dr. Moore’s testimony likely carried significant weight with the jury, so would testimony that the cause and manner of death was “undetermined.” Therefore, if the forensic evidence had been presented to the jury accurately – which would  have established that forensic science could not determine how Tristen died – such evidence certainly would have affected how the jury evaluated all of the evidence  against Petitioner. If the decision of the Texas Court of Criminal Appeals is allowed to stand, Petitioner will be denied a new trial even though the central scientific evidence supporting his conviction has been shown to be so unreliable that the accuracy of the jury’s guilty verdict has been critically undermined. Such a result does not comport with due process.


For the foregoing reasons, and for the reasons stated in the petition, the petition for certiorari should be granted.

This morning, the Supreme Court denied cert in Robbins (read the order here).  No explanation given. 

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