Amicus Curiae Brief — Russell Bucklew, Petitioner v. Anne L. Precythe, Director, Missouri Department of Corrections, et al.

No. 17-8151

Supreme Court of the

United States

IN THE

_________

RUSSELL BUCKLEW,

v.

Petitioner,

ANNE PRECYTHE, ET AL.,

_________

Respondents.

On a Writ of Certiorari to the

Eighth Circuit Court of Appeals

_________

BRIEF OF FORMER JUDGES AND

PROSECUTORS AMICI CURIAE IN SUPPORT

OF PETITIONER

_________

JENNIFER MERRIGAN

PHILLIPS BLACK, INC.

1901 S. 9th Street

Suite 510

Philadelphia, PA 19148

(888) 532-0897

j.merrigan@phillipsblac

k.org

JOHN MILLS

Counsel of Record

PHILLIPS BLACK, INC.

836 Harrison Street

San Francisco, CA 94107

(888) 532-0897

j.mills@phillipsblack.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF THE AMICI ...................................... 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................... 1

ARGUMENT ............................................................... 4

I. ROBUST ADVERSARIAL TESTING IS

FUNDAMENTAL TO THE PROPER FUNCTION

OF OUR SYSTEM OF JUSTICE,

PARTICULARLY WHERE THE STAKES ARE

HIGHEST. ............................................................... 4

A. Procedural Protections Are Designed To

Produce Just Results. ......................................... 4

B. Where The Death Penalty Is At Issue, The

Need For Reliability Demands Heightened

Procedural Protections........................................ 6

II. IN AS-APPLIED CHALLENGES TO LETHAL

INJECTION PROTOCOLS, ADVERSARIAL

TESTING IS REQUIRED TO ENSURE THAT

PLAINTIFFS ARE NOT SUBJECTED TO

UNNECESSARY TORTURE. ................................ 9

A. Challenges To The Implementation Of

Lethal Injection In Light Of A Prisoner’s Unique

Medical Conditions Require Specific Factual

Development Of Both Aspects. ......................... 10

B. Counsel’s Diligent Efforts To Pursue

Adversarial Testing Of The Protocol Were

Frustrated By The Lower Courts ..................... 12

ii

C. Botched Executions Of Medically Infirm

Prisoners Underscore The Need For Adversarial

Testing In As-Applied Challenges.................... 19

III. BASIC PROCEDURAL SAFEGUARDS

SHOULD APPLY UPON A SUBSTANTIAL

THRESHOLD SHOWING THAT AN

EXECUTION POSES A HIGH RISK OF

EXTREME PAIN WHEN COMPARED TO ITS

EFFECT ON A HEALTHY PERSON. ................. 24

A. The Court Should Require a Full and Fair

Hearing, Once a Substantial Threshold Showing

Has Been Made. ................................................ 25

B. The Alternative Method Requirement Has

No Place In As-Applied Challenges. ................ 27

CONCLUSION .......................................................... 30

APPENDIX: FULL LIST OF AMICI ....................... 1a

iii

TABLE OF AUTHORITIES

Cases

Alvogen v. State of Nevada, et al.,

A-18-77312-B (Clark County, Nev. July

11, 2018)..................................................... 10

Baze v. Rees,

553 U.S. 35 (2008) ..................................... 10

Brumfield v. Cain,

135 S. Ct. 2269 (2015) ............................... 7

Buck v. Davis,

137 S. Ct. 759 (2017) ................................. 7, 9

California v. Green,

399 U.S. 149 (1970) ................................... 5

Campbell v. Jenkins,

138 S. Ct. 466 (2017) (mem.) (No. 176688)........................................................... 22

Crawford v. Washington,

541 U.S. 36 (2004) ..................................... 5

First Amendment Coalition of Ariz., Inc.,

et al. v. Ryan, et al.,

No. 2:14-cv-01447-NVW-JFM (ECF

186) (June 21, 2017) .................................. 27

Ford v. Wainwright,

477 U.S. 399 (1986) ................................... 25

Francis v. Resweber,

329 U.S. 459 (1947) ................................... 22

iv

Gideon v. Wainwright,

372 U.S. 335 (1963) ................................... 6

Glossip v. Gross,

135 S. Ct. 2726 (2015) .................................. 10, 27

Goldberg v. Kelly,

397 U.S. 254 (1970) ................................... 5

Gonzalez v. Crosby,

545 U.S. 524 (2005) ................................... 25

Gregg v. Georgia,

428 U.S. 153 (1976) ................................... 7

Hamm v. Comm’r, Ala. Dep’t of Corr.,

No. 18-10636, 2018 WL 1020051, at *1*2, *7 (11th Cir. Feb. 22, 2018) ................. 20

Hazel-Atlas Glass Co. v. HartfordEmpire Co.,

322 U.S. 238 (1944) ................................... 8

Hill v. McDonough,

547 U.S. 573 (2006) ................................... 25, 26

Holland v. Florida,

560 U.S. 631 (2010) ................................... 8

In re Oliver,

333 U.S. 257 (1948) ................................... 5

Lonchar v. Thomas,

517 U.S. 314 (1996) ................................... 9

v

Martinez v. Ryan,

132 S. Ct. 1309 (2012) ............................... 7

Mathews v. Eldridge,

424 U.S. 319 (1976) ................................... 9

Mills v. Maryland,

486 U.S. 367 (1988) ................................... 7

Morgan v. Illinois,

504 U.S. 719 (1992) ................................... 7

Nelson v. Campbell,

541 U.S. 637 (2004) ................................... 26

Panetti v. Quarterman,

551 U.S. 930 (2007) ................................... 25, 26

Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017) ................................. 7

Polk County v. Dodson,

454 U.S. 312 (1981) ................................... 4

Powell v. Alabama,

287 U.S. 45 (1932) ..................................... 5

Ringo et al. v. Lombardi, et al.,

No. 09-4095-BP (W.D. Mo.) ....................... 14

State v. Broom,

51 N.E.3d 620 (Ohio 2016) ........................ 23

Strickland v. Washington,

466 U.S. 668 (1984) ................................... 6

vi

Washington v. Texas,

388 U.S. 14 (1967) ..................................... 5

Zant v. Stephens,

462 U.S. 862 (1983) ................................... 7

Zink et al. v. Lombardi, et al.,

No. 12-4209-BP (W.D. Mo.) ....................... 14

Statutes

42 U.S.C. § 1983 ........................................... 26

Ark. Code § 5-4-617 ...................................... 28

La. Rev. Stat. Ann. § 15:570 ........................ 28

Mo. Rev. Stat. § 546.720 .............................. 28

Okla. Stat. § 22-1015 ................................... 29

Other Authorities

Ty Alper, The United Staes Execution

Drug Shortage: A Consequence of Our

Values, 21 Brown J. of World Affairs 27

(2014) ......................................................... 10

Death Penalty Info. Ctr., Execution

Database .................................................... 28

Death Penalty Info. Ctr., Nevada

Announces New Drug Protocol Eight

Days Before Scheduled Execution (July

5, 2018)....................................................... 26

vii

Bernard E. Harcourt, The Barbarism of

Alabama’s Botched Execution, The

New York Review of Books (Mar. 13,

2018)........................................................... 21, 22

Geoffrey Hazard, Ethics of the Practice of

Law, 120-21, 123 (1978) ............................ 4

David Mbamalu & Ashis Banerjee,

Methods of Obtaining Peripheral

Venous Access In Difficult Situations,

75 Postgraduate Med. J. 459, 459

(1999) ......................................................... 11

Peter Krouse, Failed Execution of Romell

Broom Prompts Efforts to Block Second

Attempt, Cleveland Plain Dealer (Sept.

17, 2009)..................................................... 22

Katherine Lam, Ohio Inmate Whose

Execution Was Called Off Dies of

Natural Causes, Fox News (Mar. 4,

2018)........................................................... 23

Jeva Lange, Severely Ill Inmate’s

Execution Called Off Mid-procedure,

The Week (Nov. 17, 2017) ......................... 22

Stephen Majors, Governor Delays Ohio

Execution

After

Vein

Troubles,

Associated Press (Sept. 15, 2009) ............. 23

Petition for Writ of Certiorari, at 2-3,

Hamm v. Dunn, 138 S. Ct. 828 (No. 177855)........................................................... 20

viii

Reply in Support of Petition for Writ of

Certiorari, Campbell v. Jenkins, 138 S.

Ct. 466 (2017) (mem.) (No. 17-6688) ........ 22

Jordan Rubin, Alabama Inmate With

Cancer

Settles

Execution

Fight,

Bloomberg Law (Apr. 5, 2018) .................. 21

Rules

Fed. R. Civ. P. 26 .......................................... 6

Fed. R. Civ. P. 30 .......................................... 6

Fed. R. Civ. P. 31 .......................................... 6

Fed. R. Civ. P. 33 .......................................... 6

Fed. R. Civ. P. 34 .......................................... 6

Fed. R. Civ. P. 35 .......................................... 6

Fed. R. Civ. P. 36 .......................................... 6

Fed. R. Evid. 402 .......................................... 6

Fed. R. Evid. 601 .......................................... 6

Fed. R. Evid. 608 .......................................... 6

Fed. R. Evid. 702 .......................................... 6

BRIEF OF AMICI CURIAE1

_________

INTEREST OF THE AMICI

Amici are former federal and state appellate judges, prosecutors, and law enforcement officers.2 They

are leaders in the community and deeply familiar

with the criminal justice system. They include

stakeholders—former trial and appellate judges,

state Attorneys General, United States attorneys,

assistant United States attorneys, and elected prosecutors and their deputies—from every stage of the

criminal justice process. They are Democrats and

Republicans, conservatives, and liberals.

Notwithstanding their diverse backgrounds, Amici

share a strong interest in the fairness and public

legitimacy of the criminal justice system. Their

collective centuries of criminal justice experience has

taught them that system works best when the processes designed to make it function are applied

evenhandedly. The need to do so is particularly acute

in cases where the stakes are highest.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

Petitioner Russell Bucklew has a rare medical

condition, cavernous hemangioma, which presents

1 Amici certify that no party or party’s counsel authored this

brief in whole or in part and that no party or party’s counsel

made a monetary contribution intended to fund the preparation

or submission of this brief. Counsel for both parties received

timely notice of Amici’s intent to file this brief and have provided blanket consent to filing of any amicus curiae brief in

support of either party or neither party.

2 A complete list of Amici appears as an addendum.

2

unique risks that his execution by lethal injection

will cause excruciating pain. In litigating his case

before the lower courts, Petitioner faced a series of

unusual procedural barriers, none of which have a

sound basis in law and each of which were at odds

with the rigorous adversarial testing required in any

case, but especially where the death penalty is

concerned.

Refusing to conduct an evidentiary hearing, the

district court assumed the medical competence of

those conducting the execution without ever identifying those persons or their qualifications. The court

barred discovery on the qualifications of the execution team, and barred counsel from even making a

proffer about the need for discovery. These deprivations conspired to render it virtually impossible for

Petitioner to plead his case and submit it to the kind

of adversarial testing that is at the heart of our

system of justice.

This case embodies the problems plaguing other

as-applied challenges to lethal injection protocols:

courts, when presented with substantial claims

about the state’s ability to carry out an execution in

light of the prisoner’s particular medical infirmities,

instead of facing them head on, construct novel

barriers to fairly adjudicating them. Instead of

ensuring reliability via well-established procedural

norms, courts in these cases have all too often erected novel procedural obstacles to fully addressing the

claims. The opposite should be true. Where inmates

with unique medical conditions make substantial

showings that an execution process is sure or very

likely to cause needless suffering, courts should

make every effort to ensure that the parties are able

to litigate the claims.

3

The results have been gruesome. Inmates have

had their veins “blow out,” they have writhed on the

gurney for hours before dying, and in at least three

instances, the execution had to be called off because

the state and the courts had not heeded the defendant’s warnings that the execution could not be humanely carried out in light of a particular medical

condition.

Where a petitioner demonstrates that he suffers

from a medical or other condition, present through

no fault of his own, a court should be required to

permit full fact-finding and adversarial testing to

determine whether the State’s execution protocol

would produce a high risk of extreme pain relative to

that experienced by a healthy inmate.

In the course of adversarial testing (including discovery related to administration of the protocol in

light of the prisoner’s infirmities and an evidentiary

hearing) if the prisoner has made such a showing, it

should be the State’s burden to provide an alternative method that would eliminate any undue risk. In

light of the procedural irregularities in the asapplied challenges, the Court should take special

care to explain in some detail the process that applies once a plaintiff has made a colorable claim for

relief under this standard. Doing so will ensure that

the procedural fairness upon which we all rely will

also reach the cases where the stakes are highest.

4

ARGUMENT

I. ROBUST ADVERSARIAL TESTING IS

FUNDAMENTAL

TO

THE

PROPER

FUNCTION OF OUR SYSTEM OF JUSTICE,

PARTICULARLY WHERE THE STAKES

ARE HIGHEST.

The purpose of adversarial testing is to discover the truth. Where the stakes are highest, the

mechanisms for conducting that testing must be

robustly enforced, not thrown out the window. Ad

hoc departures from the rules—rules that are designed to protect litigants and to ensure the reliability of proceedings—should be avoided absent a

compelling need to avoid an injustice. This principle

applies with greatest force to cases concerning capital punishment, where the stakes could not be higher.

A. Procedural Protections Are Designed To

Produce Just Results.

Amici’s collective experience, spanning hundreds of

years, has taught us that the truth will most reliably

and completely emerge through adversary proceedings between two equally armed advocates zealously

asserting their strongest positions. “The adversary

system stands with freedom of speech and the right

of assembly as a pillar of our constitutional system.”

Geoffrey Hazard, Ethics of the Practice of Law, 12021, 123 (1978). Just as adversarial processes are at

the core of the reliable legal search for truth, so too

are they core to the equitable administration of

justice. “[Our legal] system assumes that adversarial

testing will ultimately advance the public interest in

truth and fairness.” Polk County v. Dodson, 454 U.S.

312, 318 (1981).

5

A core element of our system is examining the witnesses in opposition:

A person’s right to reasonable notice of

a charge against him, and an opportunity to be heard in his defense—a

right to his day in court—are basic in

our system of jurisprudence; and these

rights include, as a minimum, a right

to examine the witnesses against him,

to offer testimony, and to be represented by counsel.

In re Oliver, 333 U.S. 257, 273 (1948). The opportunity to confront the evidence against oneself is considered a “bedrock procedural guarantee,” Crawford v.

Washington, 541 U.S. 36, 42 (2004), and “the greatest legal engine ever invented for the discovery of

truth.” California v. Green, 399 U.S. 149, 174 (1970).

In addition to examining the witnesses in opposition, being permitted to present one’s own case for

relief is a fundamental premise of our court system.

Providing an interested party with the chance “to

contest [the case against him] and produce evidence

in rebuttal” is fundamental to ensuring that “honest

error or irritable misjudgment” do not interfere with

the decision making process. Goldberg v. Kelly, 397

U.S. 254, 266 (1970) (internal quotation omitted).

“The right to offer testimony of witnesses” is necessary so the factfinder “may decide where the truth

lies” and “is a fundamental element of due process of

law.” Washington v. Texas, 388 U.S. 14, 19 (1967).

“The right to be heard would be, in many cases, of

little avail if it did not comprehend the right to be

heard by counsel.” Powell v. Alabama, 287 U.S. 45,

68-69 (1932). Access to counsel stems from the “noble

6

ideal” of “assur[ing] fair trials before impartial

tribunals in which every defendant stands equal

before the law.” Gideon v. Wainwright, 372 U.S. 335,

344 (1963). The right to counsel plays a crucial role

in the adversarial system . . . since access to counsel’s skill and knowledge is . . . critical to the ability

of the adversarial system to produce just results.”

Strickland v. Washington, 466 U.S. 668, 685 (1984).

The Federal Rules of Civil Procedure and Evidence

are designed to effectuate these protections. The

Rules of Civil Procedure provide litigants with powerful tools to obtain relevant information from their

opponents. They allow parties to make inquiries of

witnesses and each other. Fed. R. Civ. P. 30, 31, 33.

The rules provide for production of documents and

even for mental and physical examinations. Fed. R.

Civ. P. 34, 35. They also permit the parties to focus

the litigation by obtaining admissions from each

other. Fed. R. Civ. P. 36. And they provide for a

timeline and process for undertaking these tasks.

Fed. R. Civ. P. 26.

The Federal Rules of Evidence provide for presentation of expert testimony, impeachment of witnesses, and the scope of competent evidence in general.

Fed. R. Evid. 402, 601, 608, 702. Both sets of rules

represent a careful accounting for the rights and

interests of parties and non-parties, as well as the

need for adversarial testing in pursuit of the truth.

B. Where The Death Penalty Is At Issue, The

Need For Reliability Demands Heightened

Procedural Protections.

Due process and the Eighth Amendment both require heightened reliability—and attendant procedural protections—when the stakes are highest.

7

“When a defendant’s life is at stake, the Court has

been particularly sensitive to insure that every

safeguard is observed.” Gregg v. Georgia, 428 U.S.

153, 187 (1976) (opinion of Stewart, J.). “[B]ecause

there is a qualitative difference between death and

any other permissible form of punishment, there is a

corresponding difference in the need for reliability in

the determination that death is the appropriate

punishment[.]” Zant v. Stephens, 462 U.S. 862, 885

(1983) (internal quotation omitted).

Consistent with this principle, the Court has established a wide array of procedural protections to

ensure that capital cases are reliably adjudicated.

See, e.g., Buck v. Davis, 137 S. Ct. 759, 778 (2017)

(death sentenced inmate entitled to re-open his

habeas case under Rule 60(b) where race likely

played a role in deciding whether to sentence the

inmate to death); Brumfield v. Cain, 135 S. Ct. 2269,

2273 (2015) (death sentenced inmate making colorable claim of intellectual disability entitled to evidentiary hearing to prove claim); Morgan v. Illinois, 504

U.S. 719, 729-30 (1992) (capital defendant entitled to

conduct voir dire of jury venire on views about capital punishment); Mills v. Maryland, 486 U.S. 367,

373-75 (1988) (defendant entitled to have each juror

individually consider mitigating value of evidence

presented at capital sentencing proceeding).3 Courts

In non-capital cases as well, courts have taken pains to

ensure that their procedures do not work injustices, permitting

equitable exceptions to rules that would otherwise foreclose

relief. See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869

(2017) (providing exception to the “no-impeachment rule” where

a juror made clear and explicit statements indicating racial

animus was a motivating factor in the vote to convict); Martinez

v. Ryan, 132 S. Ct. 1309, 1315 (2012) (excusing procedural

3

8

have an obligation not only to assure strict adherence to the law, but to act equitably. The procedural

protections afforded capital defendants reflect the

need for reliability where nothing less than the

litigant’s life is on the line.

Courts must balance the competing obligations to

act equitably and to predictably uphold the law.

“[W]e have followed a tradition in which courts of

equity have sought to ‘relieve hardships which, from

time to time, arise from a hard and fast adherence’ to

more absolute legal rules, which, if strictly applied,

threaten the ‘evils of archaic rigidity.’” Holland v.

Florida, 560 U.S. 631, 649 (2010) (quoting HazelAtlas Glass Co. v. Hartford-Empire Co., 322 U.S.

238, 248 (1944)).

“[E]quitable procedure” grants

courts the “flexibility” which is “necessary to correct

. . . particular injustices.” Hazel-Atlas Glass Co., 322

U.S. at 248. In the context of deciding whether to toll

the statute of limitations in the Antiterrorism and

Effective Death Penalty Act (AEDPA) based on

attorney misconduct, the Court explained that extraordinary circumstances may warrant tolling to

avoid having a habeas corpus case dismissed, resulting in no federal review of the capital defendant’s

constitutional claims. Id. Where the stakes are

highest, courts ensure that departures from the rules

err on the side of ensuring justice is served.

A state’s interest in “avoiding improper delay, expense, complexity, and interference with [its] interest in the ‘finality’ of its own legal processes” are

default of federal habeas corpus claim of ineffective assistance

of counsel where state post-conviction counsel was ineffective

for failing to raise the claim).

9

often weighed against the need for equitable relief.

However, states have no finality interest in a

“flawed” outcome. Buck, 137 S. Ct. at 779.

Regardless, “ad hoc departure” from the rules and

processes normally that govern cases should be

avoided in order to “reduce uncertainty, avoid unfair

surprise, minimize disparate treatment of similar

cases, and thereby help all litigants, including the

State, whose interests in ‘finality’ such rules often

further.” Lonchar v. Thomas, 517 U.S. 314, 324

(1996). And in the context of capital cases, the gravity of the proceedings strongly favors procedural

solicitude to the inmate whose life is at stake.

Mathews v. Eldridge, 424 U.S. 319, 335-36 (1976)

(requiring assessment of the “private interest that

will be affected by the official action” to determine

the extent of process due).

II. IN AS-APPLIED CHALLENGES TO LETHAL

INJECTION PROTOCOLS, ADVERSARIAL

TESTING IS REQUIRED TO ENSURE THAT

PLAINTIFFS ARE NOT SUBJECTED TO

UNNECESSARY TORTURE.

As-applied challenges are inherently case-specific.

The plaintiff-specific nature of such challenges

heightens the need to make a detailed showing.

Relatedly, the need for plaintiffs to access the courts’

factfinding tools is greater in as-applied challenges.

Unfortunately, the opposite has been the norm. In

case after case, the courts have erected unusual

procedural barriers that undermine plaintiffs’ ability

to effectively plead and prove as-applied challenges

to lethal injection procedures. The results have been

gruesome displays that have no place in civilized

society.

10

A. Challenges to the Implementation of Lethal Injection in Light of a Prisoner’s

Unique Medical Conditions Require Specific Factual Development.

In terms of facial challenges to lethal injection protocols, “Baze [v. Rees, 553 U.S. 35 (2008)] [appeared

to have] cleared any legal obstacle to use the most

common three-drug protocol that had enabled States

to carry out the death penalty in a quick and painless fashion.” Glossip v. Gross, 135 S. Ct. 2726, 2733

(2015). However, two obstacles soon emerged, one

broad and one narrow.

The broader obstacle, inapplicable here, has to do

with procurement of lethal injection drugs by the

states. As pharmaceutical companies learned that

their products were being used in executions, they

began using their distribution contracts to exclude

their use in executions.4 At the same time, the laws

of the European Union prohibited European manufacturers from selling their drugs for use in executions. See Ty Alper, The United States Execution

Drug Shortage: A Consequence of Our Values, 21

Brown J. of World Affairs 27, 28 (2014). These twin

developments have made it difficult to obtain drugs

and, broadly, to carry out executions. See, e.g., Order,

Alvogen v. State of Nevada, et al., A-18-77312-B

(Clark County, Nev. July 11, 2018) (granting tempo4 The corporate opposition to involvement in executions has a

historical prologue. Thomas Edison used the controversy

around capital punishment to antagonize his competitor,

George Westinghouse. Michael Rosenwald, “Great God, He Is

Alive!” The First Man Executed By Electric Chair Died Slower

Than Thomas Edison Expected, Washington Post (Apr. 28,

2017).

11

rary restraining order halting execution as sought by

drug manufacturing company alleging fraud and

reputational harm related to procurement and use of

its products in an execution). This impediment, the

difficulty some states are having obtaining execution

drugs, is not at issue here.

The other, much narrower, obstacle is at issue.

There are a handful of inmates who have rare medical conditions that make their execution via lethal

injection much more likely to create a substantial

risk of extreme pain. Some of these inmates, such as

Petitioner, have raised challenges based on their

conditions.

These challenges are not per se challenges to the

death penalty or even to lethal injection. They are

challenges to the implementation of lethal injection

in light of the specifics of their unique medical condition. By their very nature, challenges to protocols

based on these medical conditions will be unique to

the inmate asserting them.

And depending on the condition at issue, information about a state’s protocol may become relevant.

For example, where the condition in question concerns a problem with veins, knowing the background

and experience of those seeking to obtain intravenous access would be important. See David Mbamalu

& Ashis Banerjee, Methods of Obtaining Peripheral

Venous Access In Difficult Situations, 75 Postgraduate Med. J. 459, 459 (1999).

For as-applied challenges, the showing necessary to

establish a claim of cruel and unusual punishment

will involve asserting facts specific to the challenger

as well as information about the process that goes

12

beyond the plain language of the protocol in question.

Turning to the context of this case, even assuming

that Missouri’s protocol is followed precisely, without

any mistake or error, the risk of severe pain for

Bucklew exists because the protocol was not crafted

with his unique and rare medical circumstance in

mind. In the lower court, counsel for Bucklew presented uncontroverted evidence that their client’s

cavernous hemangioma could cause him to choke on

his own blood during the administration of Missouri’s lethal injection protocol. Counsel for Bucklew

made many attempts to discover the specificities of

the protocol’s machinations relevant to his condition,

the preparedness of the execution team and the

available accommodations and alternatives should

Bucklew’s airway become engorged with his own

blood. The district court denied access to any of the

relevant information.

B. Counsel’s Diligent Efforts To Pursue Adversarial Testing Of The Protocol Were

Frustrated By The Lower Courts

Petitioner is challenging the method and means of

his proposed execution because, due to his rare and

uncontested medical condition, it poses substantial

risks that: he will suffer through repeated, failed

attempts to gain peripheral venous access; the tumor

on his uvula will rupture early in the process and he

will gag on his own blood as a result; when he is

made to lie flat during a cut-down procedure he will

have difficulty managing his airway; and (assuming

the execution progresses this far) when the lethal

drug is administered he will, after he loses the

ability to manage his airway, experience a sense of

suffocating for several minutes. Brief of Petitioner at

13

30, Bucklew v. Precythe, No. 178151 (July 16, 2018).

Despite providing compelling evidentiary support

about his condition, Bucklew was repeatedly barred

from learning whether the execution team was

prepared to address these risks.

In the proceedings below, counsel made efforts to

obtain discovery in several categories, including the

execution protocol, the chemicals, alternative methods of execution, Correctional Department policies

and procedures, and the qualifications and individual experience of the execution team. See Order Regarding Scope of Discovery, Joint Appendix at 118,

Bucklew v. Precythe, No. 178151. The district court

permitted limited discovery relating solely to the

protocol in place at the time and the chemicals to be

utilized in the execution (excluding information

about where or how the drugs were obtained). Id. at

119-26. The district court denied discovery about the

individual execution team members, finding it irrelevant since Bucklew did “not allege that changing the

execution team members will significantly decrease

the risk of pain and suffering.”5 Id. at 124.

The Eighth Circuit affirmed the denial of the discovery request because it assumed that the execution

team was qualified under the protocol and, despite

having no information about their qualifications,

competent to perform their assigned duties. Opinion,

Joint Appendix at 854.

5 The court prohibited discovery about the individual team

members, permitting only general discovery relating to the

composition of the team (for example, the category of team

member and the number of members on the team). See Order

Regarding Scope of Discovery, Joint Appendix at 124, Bucklew

v. Precythe, No. 178151.

14

In addition to denying discovery of information

beyond the protocol itself, the district court erected a

further obstacle, prohibiting counsel from even

making a proffer about the need for additional discovery. During the course of two prior facial lethal

injection challenges, Ringo et al. v. Lombardi, et al.,

No. 09-4095-BP (W.D. Mo.) and Zink et al. v. Lombardi, et al., Case No. 12-4209-BP (W.D. Mo.), counsel for the group of petitioners (which included

Bucklew represented by Attorney Cheryl Pilate)

conducted depositions of various execution team

members, including telephonic depositions of the

execution team doctor.

These depositions are covered by a protective order

in the prior cases (which were eventually transferred

to the same District Court Judge in this case) and

are not available publicly. See Plaintiff’s Motion for

Leave to File Ex Parte and Under Seal an Exhibit in

Support of Plaintiff’s Reply Brief in Support of His

Motion to Compel, Joint Appendix at 127-28. Though

Attorney Pilate had learned information from these

depositions that was “highly relevant” to Bucklew’s

individual medical challenge, she was not permitted

to use that information to advocate for her client, nor

was she permitted to even share that information

with her co-counsel, hindering their ability to effectively advocate for their client.6 Id. at 128.

The prior cases (Ringo and Zink) involved primarily the

same cast of characters as in the present suit: Missouri

Attorney Cheryl Pilate represented Bucklew, Missouri’s Office

of Attorney General represented the Department of

Corrections, and the District Court Judge Beth Phillips

presided. There was one exception: pro bono counsel with the

6

15

Attorney Pilate attempted to make a record about

the relevance of the depositions on three separate

occasions. First, she sought leave to file ex parte a

proffer in support of her motion to compel discovery

that contained excerpts of the depositions. Id. Notably, the filing needed to be ex parte only as to her cocounsel, since the judge and the office of the Attorney

General all had possession of the confidential depositions in question.7 Id. Attorney Pilate’s motion

explained that the depositions were “highly relevant

to the present litigation.” Id. In a text only docket

entry, without an accompanying opinion or order, the

district court denied counsel’s request, inexplicably

prohibiting counsel from filing the proffer and, thus,

from making a record of the need for discovery.

Order Denying Motion to File Document Under Seal,

Joint Appendix at 131.

The following month, Attorney Pilate again attempted to rely on the relevant information from the

Ringo and Zink depositions, seeking leave to file a

two-page Supplement to Plaintiff’s Suggestions in

Opposition to Defendants’ Motion for Summary

Judgment. Both the motion for leave and the proffered supplement were in compliance with the prior

protective order as well as the district court’s previous text order, and did not include any portion of the

depositions. Plaintiff’s Motion for Leave to File

Supplement to Plaintiff’s Suggestions in Opposition,

firm Sidley Austin, who represent Bucklew in the present case,

was not involved in the prior facial challenges.

7 Though the Missouri Attorney General Chris Koster had

lost the election against Joshua Hawley, and Mr. Hawley had

staffed his office with many new attorneys, they all were given

complete access to the confidential depositions.

16

Joint Appendix at 811. The Motion for Leave provided that “[g]iven the subject matter of portions of the

summary judgment briefing, Plaintiff believes it is

prudent to preserve his objection and assert this

ground as a further basis for denying summary

judgment.” Id. at 812.

Counsel attached the proffered supplement to the

motion for leave, averring that she alone (without

input or assistance from her co-counsel) had prepared it. In the supplement, counsel argued that

“deposition transcripts would provide relevant,

admissible evidence bearing on numerous allegedly

undisputed facts raised by defendants, as well as

providing additional support for facts asserted by

Plaintiff.” Id. at 814. In the deposition, the doctor

had “testified on a variety of subjects relating to the

manner of carrying out executions, the potential

risks involved, and specific relevant aspects of his

background.” Id. at 814-15.

The court again denied leave to file the pleading,

on the grounds that “there is no need to risk confusing the Record in this manner.” Order Denying

Plaintiff’s Motion for Leave to File Supplemental

Suggestions in Opposition, Joint Appendix at 816.

After the court granted summary judgment, Attorney Pilate sought permission to share the depositions

with her co-counsel in order to appeal the court’s

decisions prohibiting use of the depositions in the

course of the litigation. Plaintiff’s Notice of Filing

Discovery Dispute Summaries, Joint Appendix at

836. Though it had initially scheduled a teleconference for counsel to present her position on the issue,

the court sua sponte cancelled the conference and,

instead, issued an order denying counsel’s request to

share the depositions with her co-counsel. Id. The

17

court found no justification to share the depositions

because it had found the individual qualifications of

the execution team members to be irrelevant. Order

Denying Plaintiff’s Request for Access to Depositions

Taken in Other Cases, Joint Appendix at 834.

Thereafter, Attorney Pilate filed a two-page memorandum preserving her objection to the court’s ruling, which counsel argued constituted a due process

violation.

Plaintiff’s Notice of Filing Discovery

Dispute Summaries, Joint Appendix at 838-39. The

filing noted that counsel had “scrupulously abided by

the protective order” pertaining to the depositions,

which had left her “unable to discuss them with her

co-counsel or to explain, even in general terms, why

lack of access to them has impaired Plaintiff’s ability

to litigate his due process claim.” Id. at 838.

The memorandum highlighted the inherent unfairness of the bizarre situation: the one and only party

to the litigation that did not have access to the

information was co-counsel for Bucklew. In prohibiting pro bono co-counsel for Bucklew from having

access to these “highly relevant” materials the district court interfered with counsel’s ability to zealously advocate for their client. Additionally, the

court’s rulings ultimately interfered with the attorney client relationship, by effectively preventing

Attorney Pilate from discussing the depositions with

her client, because she could not take the risk that

he would mistakenly communicate the confidential

information to her co-counsel.

In curtailing discovery of new information while

precluding counsel from using information she

already knew, the district court impeded the adver-

18

sarial process, effectively stripping Bucklew of important procedural protections.8 The defense specifically requested discovery of the qualifications of the

execution team in order to discover whether the

medical members of the execution team were informed as to the details of Bucklew’s rare medical

condition and medically equipped to manage the

execution in light of that condition. That the execution team was qualified under the protocol did not

necessarily mean that it was qualified to medically

manage Bucklew’s condition.

Notably absent in the discovery pertaining to the

approved execution protocol was any evidence or

indication that the protocol was developed to, in any

way, accommodate Bucklew’s condition. The medical

background and qualifications in the area of cavernous hemangioma of the individual execution team

members was and remains of vital import, since the

team would be responsible for making in-themoment decisions during the execution procedure.

As Missouri DOC Director Precythe testified, she

was not educated about Bucklew’s medical condition

and would need to defer to the medical members of

the execution team to navigate his particularized

issues. Brief of Petitioner at 30, Bucklew v. Precythe,

No. 178151 (July 16, 2018). The medical team would

be permitted to exercise considerable discretion in

8 Because he was not permitted to depose the execution team,

Bucklew was also unable to question them as to specific details

about the administration of the protocol beyond those expressly

enumerated. For example, he was unable to ascertain the size

of the needles, the constrictive nature of the restraints, or the

capability of the gurney to be placed in a seated or partially

reclined position.

19

devising potential contingency plans, perhaps even

after the procedure began. These extra-protocol, subrosa actions require the team to rely upon its

knowledge and experience regarding Bucklew’s rare

condition. Thus, their knowledge and experience was

key.

The district court’s refusal to permit discovery on

this question hamstrung both counsel and the appellate court in assessing his claim that Missouri’s

execution protocol would, in light of his rare medical

condition, amount to torture.

C. Botched Executions Of Medically Infirm

Prisoners Underscore The Need For Adversarial Testing In As-Applied Challenges.

The need for specific fact finding in this area is

clear in light of several recent botched executions,

where various states’ protocols failed to adequately

account for the individual medical needs of infirm

prisoners. In these cases, the prisoner’s unique

infirmities resulted in an increased risk of harm and

an inability to complete the execution. In each case,

last minute modifications were made to address the

prisoner’s medical complications. These modifications—which were implemented without adversarial

testing—did not correct the risk of harm, and, instead, may have actually exacerbated the harm

incurred.

Doyle Hamm was scheduled to be executed one

month before Petitioner. Prior to the execution, his

counsel filed a complaint in federal court arguing

that his client’s medical condition, which included a

diagnosis of and ongoing treatment for lymphatic

cancer, created a substantial risk of harm under

20

Alabama’s lethal injection protocol, in part because

of increased difficulty finding a vein. Petition for

Writ of Certiorari, at 2-3, Hamm v. Dunn, 138 S. Ct.

828 (No. 17-7855).

Instead of accepting the full implications of the

plaintiff’s evidence that his medical condition would

render his execution cruel and unusual, the district

court and then the Eleventh Circuit Court of Appeals

adopted unusual procedural modifications of the

protocol. First, the district court prohibited the state

from attempting peripheral venous access on

Hamm’s upper extremities. See Hamm v. Comm’r,

Ala. Dep’t of Corr., No. 18-10636, 2018 WL 1020051,

at *1-*2, *7 (11th Cir. Feb. 22, 2018).

The district court did not address whether central

venous access was permissible; though its own expert

had concluded that such access would require ultrasound equipment and a specialized medical professional. Id. Next, the Eleventh Circuit required the

state’s experts to submit affidavits directly to that

court assuring them that the state would have a

doctor involved in the event that central venous

access would be required. Id. Both federal courts

precluded Hamm from presenting evidence challenging the newly modified protocol. See Petition for Writ

of Certiorari, Hamm, 138 S. Ct. 828 (No. 17-7855).

Hamm argued unsuccessfully to this Court that

even if peripheral venous access is achieved (per the

district court’s order), injection of large quantities of

the drugs would “blow out” his peripheral veins and

result in the infiltration of the lethal drugs in his

flesh, rather than his blood system, causing severe

and unnecessary pain and suffering. Id. at 8.

21

This Court declined to issue a stay and the execution went forward, almost exactly as predicted by

counsel for Hamm. An initial group of executioners

attempted to gain IV access on five different locations in Hamm’s body. After failing to find a suitable

vein, two additional executioners entered the chamber, one carrying an ultrasound device. One placed

gel on Hamm’s groin while the other “began inserting multiple needles into his groin and pelvis, with

repeated jabbing movements, hitting deep into the

retropubic area.” Bernard E. Harcourt, The Barbarism of Alabama’s Botched Execution, The New York

Review of Books (Mar. 13, 2018). Blood gushed out of

Hamm, soaking the pad beneath him. Id. Hamm

began to pray the execution would succeed, just so

the ordeal would come to an end. Id.

Hamm’s attorney, barred from viewing the chamber, pleaded for a word with the warden when, an

hour into the process, it was clear something unusual was afoot. Per the state’s protocol, he was denied

the opportunity. Id. Ultimately, the execution was

halted. Instead of further defending the process, the

State of Alabama entered a confidential settlement

with Hamm, who is alive today.9 Jordan Rubin,

Alabama Inmate With Cancer Settles Execution

Fight, Bloomberg Law (Apr. 5, 2018).

At least two other attempted lethal injection executions have been brought to a halt where the Depart9 Exhibiting an apparent moment of an utter lack of insight,

the warden in Hamm’s case refused to acknowledge that there

was a “problem” with the attempted execution. Bernard E.

Harcourt, The Barbarism of Alabama’s Botched Execution, The

New York Review of Books (Mar. 13, 2018).

22

ment of Corrections itself determined that the execution could not be completed. See Bernard E. Harcourt, The Barbarism of Alabama’s Botched Execution, The New York Review of Books (Mar. 13, 2018);

Jeva Lange, Severely Ill Inmate’s Execution Called

Off Mid-procedure, The Week (Nov. 17, 2017); Peter

Krouse, Failed Execution of Romell Broom Prompts

Efforts to Block Second Attempt, Cleveland Plain

Dealer (Sept. 17, 2009); see also Francis v. Resweber,

329 U.S. 459 (1947) (recounting survival of electrocution procedure).

Alva Campbell objected to the application of Ohio’s

execution protocol based on medical diagnoses,

including venous issues similar to those in the present case. Campbell had a history of multiple illnesses and surgeries requiring IV treatment and resulting in compromised veins. He suffered from terminal

cancer, emphysema, and respiratory failure, resulting in the removal of a lung. Petition for Writ of

Certiorari, Campbell v. Jenkins, 138 S. Ct. 466

(2017) (mem.) (No. 17-6688).

Campbell’s attorneys argued that his unsuitable

veins caused a substantial likelihood of severe pain

due to the inability to find access to a vein and that

his pulmonary illnesses would cause him to suffer

from obstructed breathing and “air hunger.” Id. at

17, 19-20. His pre-execution attempts to litigate the

impact of his medical condition upon Ohio’s execution protocol were consistently denied by state and

federal courts on procedural grounds. Reply in Support of Petition for Writ of Certiorari, Campbell v.

Jenkins, 138 S. Ct. 466 (2017) (mem.) (No. 17-6688).

On the day of the scheduled execution, the prison

provided Campbell with a pillow, in order to prevent

accidental suffocation during the injection procedure.

23

Executioners then unsuccessfully searched for a vein

for twenty-five minutes, repeatedly puncturing

Campbell in his arms and leg. Ultimately, Ohio's

governor halted the execution. Id. Campbell subsequently died of his various ailments. Katherine Lam,

Ohio Inmate Whose Execution Was Called Off Dies of

Natural Causes, Fox News (Mar. 4, 2018).

Ohio’s attempted execution of Romell Broom lasted

for two hours before the governor called it to a halt.

Prison staff spent over an hour attempting to obtain

venous access in the arms and legs of Broom. State v.

Broom, 51 N.E.3d 620, 624 (Ohio 2016). Correctional

officers first spent approximately 45 minutes attempting to access veins in Broom’s arms. Id. After

taking a short break, a prison doctor (not included in

Ohio’s protocol) began attempting to locate veins in

Broom’s feet and ankles. Id. Broom attempted to

assist the officers in finding a suitable vein: rolling

over on his side, flexing his fingers and rubbing the

IV tubes over his veins. Stephen Majors, Governor

Delays Ohio Execution After Vein Troubles, Associated Press (Sept. 15, 2009). When that was unsuccessful, he rolled over onto his back, crying, and the

officers handed him a roll of toilet paper to wipe his

face, before patting him on the back and leaving the

death chamber. Id.; see also Broom, 51 N.E.3d at

624. After two hours, the execution team took another break and determined that they could not access a

vein. Id. In total, Broom sustained at least eighteen

puncture marks over his body. Id. Ultimately, Ohio’s

governor granted a one-week reprieve.

During the two hour execution attempt, Broom’s

attorneys tried repeatedly and unsuccessfully to gain

access to their client. Stephen Majors, Governor

delays Ohio Execution After Vein Troubles, Associat-

24

ed Press (Sept. 15, 2009). Counsel was informed that

attorney access was not permitted once the execution

process had begun. Id.

In each of these cases, the failure to adequately

examine the impact of medical infirmities on the

execution protocol resulted in extreme pain and,

ultimately, aborted executions. Exacerbating the

harm in these cases were the reasonably foreseeable

but medically and legally untested ad hoc modifications and contingencies. Though counsel for Campbell and Hamm attempted to examine and avoid

these foreseeable consequences, they were estopped

from doing so. Ultimately, their clients were tortured

while counsel, despite their diligent efforts, stood by

unable to intervene. These gruesome and predictable

executions were not “innocent misadventures” but

rather represent reasonably foreseeable violations of

the Eighth Amendment, which, with adequate discovery and testing, could have been avoided.

III. BASIC PROCEDURAL SAFEGUARDS

SHOULD APPLY UPON A SUBSTANTIAL

THRESHOLD

SHOWING

THAT

AN

EXECUTION POSES A HIGH RISK OF

EXTREME PAIN WHEN COMPARED TO ITS

EFFECT ON A HEALTHY PERSON.

As with other claims of deprivations of constitutional rights, it is the plaintiff’s burden to prove the

case for entitlement to relief. But, as with other

deprivations, there is a preliminary question: what

showing is necessary to trigger the robust procedural

protections attendant to claims regarding matters of

life and death.

25

A. The Court Should Require a Full and Fair

Hearing, Once a Substantial Threshold

Showing Has Been Made.

The treatment of as-applied challenges by the lower courts strongly suggests this Court should provide

specific guidance on the process by which the lower

courts address the merits of such claims. Doing so

will allow the adversarial system to work as it should

and will prevent the gruesome spectacle of botched

executions, narrowly avoided in this case, from

repeating itself.

At a minimum, a substantial threshold showing of

entitlement to relief ought to entitle the plaintiff to a

“fair hearing” consistent with fundamental fairness.

Panetti v. Quarterman, 551 U.S. 930, 949 (2007)

(quoting Ford v. Wainwright, 477 U.S. 399, 426

(1986) (Powell, J., concurring)). Such a showing

should not be onerous to make, and the quantum of

proof need not be great. A plaintiff should be required to offer substantial evidence that because of a

medical or other condition present through no fault

of his own, the State’s execution protocol would

produce a high risk of extreme pain relative to that

experienced by a healthy inmate. Upon a substantial

showing of entitlement to relief, the “fair hearing”

must, as a matter of due process, include, at a minimum, the adversarial presentation of evidence,

argument from opposing parties, and factfinding on

the record. Id.

The Federal Rules of Civil Procedure and Rules of

Evidence provide sound (and generally controlling)

guidance. Compare Gonzalez v. Crosby, 545 U.S. 524,

529 (2005) (noting AEDPA supplanted some Rules of

Civil Procedure for purposes of habeas corpus cases)

with Hill v. McDonough, 547 U.S. 573, 582 (2006)

26

(noting that 42 U.S.C. §1983 does not impose pleading requirements beyond those in the federal rules).

Courts should be reluctant to depart from them.

Discovery should be readily available, and the appellate courts should not engage in ad hoc fact finding, a task they are ill equipped to undertake. Courts

must be made to take seriously and consider with

care claims that an inmate’s unique medical condition will render an otherwise valid execution protocol

tortuous.

Not being forced to make this assessment under

the often-compressed timetable of a looming execution will reduce this risk. A substantial threshold

showing, if made within a reasonable period after an

execution warrant is issued, should also entitle an

inmate to a stay of execution. Hill, 547 U.S. at 584;

Nelson v. Campbell, 541 U.S. 637, 649-50 (2004).

Providing a stay will alleviate the chaos and highly

time-pressured filings that are all too often characteristic of the process in as-applied lethal injection

cases.

The State may complain, as they have here, that an

as-applied challenge has not been raised in a timely

fashion. However, an as-applied challenge to a lethal

injection protocol is often not ripe until an execution

warrant is issued. Accord Panetti, 551 U.S. at 943.

States often change protocols, making it difficult to

know which protocol will be in place at the time of

any given execution. See, e.g., Death Penalty Info.

Ctr., Nevada Announces New Drug Protocol Eight

Days Before Scheduled Execution (July 5, 2018). And

an inmate’s medical condition, like his mental status,

is not static. A new diagnosis or a deterioration in

condition could warrant further factual development.

27

A stay should also readily issue if a state has also

only recently adopted a new or altered protocol

responsive to problems. Not providing some time for

review and testing of a protocol poses a risk that an

inmate would be executed despite a substantial risk

of extreme pain in light of his particular medical

condition. In apparent recognition of this concern, at

least one state has agreed to withdraw any pending

warrants if there is a change to the protocol. Stipulated Settlement, First Amendment Coalition of

Ariz., Inc., et al. v. Ryan, et al., No. 2:14-cv-01447NVW-JFM (ECF 186) (June 21, 2017).

The goal is to let our judicial system work. When

the litigants are able to equally and fully make use of

the fact finding tools it provides, the truth emerges

and justice is served. Sometimes delaying an execution will be necessary to let these processes play out.

But these are in rare cases, involving prisoners with

unique and substantiated medical conditions. Where

a plaintiff has made a substantial threshold showing,

a full and fair hearing should be provided.

B. The Alternative Method Requirement Has

No Place In As-Applied Challenges.

The Court has not addressed whether naming an

alternative method of execution is required in asapplied challenges to methods of execution. See

Glossip, 135 S. Ct. at 2733 (discussing facial challenge to protocol). There are several reasons for not

imposing such a requirement in as-applied challenges. The rationale for the requirement—to avoid

allowing a facial challenge to a method of execution

to function as an attack on the death penalty itself—

simply does not apply to as-applied challenges.

28

As-applied challenges are necessarily about the

unique circumstances of the persons making them

and pose no risk of bringing executions to a halt

more broadly. Perhaps the most probative evidence

of this reality is that five persons have been executed

in the time since the Court accepted review in this

case. Death Penalty Info. Ctr., Execution Database

(showing five executions between April 30, 2018 and

July

18,

2018)

available

at

https://deathpenaltyinfo.org/views-executions.

Without access to the courts’ tools for discovery, it

would be unfair to require that prisoners in asapplied challenges propose an alternative method. At

the complaint-filing stage, the inmate will lack

information critical to meaningfully asserting alternatives. They will not know how much the medical

team knows about their condition, what accommodations the state is able and planning to make in light

of the condition, and information about the team

members and equipment that will be used in the

execution.

The information imbalance is exacerbated by the

state secrecy laws and practices that have proliferated in the context of executions. States have made

their drug suppliers literal state secrets. States keep

the curtains drawn during executions, and the

identities and qualifications of execution team members are often not public information. See, e.g., Mo.

Rev. Stat. 546.720(2)-(3) (2007) (prohibiting disclosure of the identity of any execution team member);

Ark. Code § 5-4-617(D)(h)-(i) (2015) (exempting

information pertaining to execution procedures and

team members from state public disclosure laws); La.

Rev. Stat. Ann. § 15:570(G) (2012) (amended 2014)

(prohibiting disclosure of information about the

29

identity of execution team members, including the

identities of persons and documents that could lead

to the determination of the identities of the team

members); Okla. Stat. § 22-1015(B) (2014) (making

confidential and exempt from discovery in any judicial proceeding the “identity of all persons who

participate in or administer the execution process

and persons who supply the drugs, medical supplies

or medical equipment for the execution” as well as

any information related to the drug purchases).

Where the source of the risk of suffering is related to

non-public information, it is unfair to require a

plaintiff to name an alternative method.

Requiring instead, as we propose, the State to present evidence of alternatives and accommodations in

an evidentiary hearing on the risk the execution

would pose would serve dual goals: It would provide

a level playing field whereby the party with the

information relevant to the availability of alternatives is the party tasked with asserting them. It

would also allow states to clear this obstacle to

execution by addressing the problem asserted by the

plaintiff.

*****

Our proposals are premised on a level playing field.

Inmates and their counsel must be provided with the

procedural protections and tools necessary to develop

and present their case for relief. The one-sided fact

development, lack of access to counsel, and unresponsiveness to serious concerns about the risks

posed in light of an inmate’s medical condition have

distorted both the process and the reliability of the

outcomes in challenges to lethal injection protocols.

Courts should provide robust procedural protections

30

in these cases to ensure that inmates’ claims are

fully and fairly heard.

CONCLUSION

The judgment of the court below should be

reversed.

JENNIFER MERRIGAN

PHILLIPS BLACK, INC.

1901 S. 9th Street

Suite 510

Philadelphia, PA 19148

(888) 532-0897

j.merrigan@phillipsblack.o

rg

JOHN MILLS

Counsel of Record

PHILLIPS BLACK, INC.

836 Harrison Street

San Francisco, CA

94107

(888) 532-0897

j.mills@phillipsblack.org

Counsel for Amici Curiae

July 23, 2018