Reply Brief — Abu-Ali Abdur'Rahman, et al., Petitioners v. Tony Parker, Commissioner, Tennessee Department of Corrections, et al.

No. 18-8332

IN THE

Supreme Court of the United States

_____________

ABU-ALI ABDUR’RAHMAN, et al.,

Petitioners,

v.

TONY PARKER, et al.,

_____________

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Tennessee

_____________

REPLY BRIEF FOR THE PETITIONERS

_____________

EXECUTION SCHEDULED

FOR MAY 16, 2019

_____________

KELLEY J. HENRY

AMY D. HARWELL

RICHARD TENNENT

KATHERINE DIX

OFFICE OF FEDERAL PUBLIC

DEFENDER, MIDDLE

DISTRICT OF TENNESSEE

810 Broadway, Suite 200

Nashville, TN 37203

(615) 736-5047

KATHLEEN MORRIS

42 Rutledge Street

Nashville, TN 37210

(615) 242-3200

BRADLEY MACLEAN

1702 Villa Place

Nashville, TN 37212

(615) 943-8716

ROBERT N. HOCHMAN *

KELLY HUGGINS

EMILY A. ROSENBERG

SIDLEY AUSTIN LLP

One S. Dearborn Street

Chicago, IL 60603

(312) 853-7000

rhochman@sidley.com

COLLIN P. WEDEL

SIDLEY AUSTIN LLP

555 W. Fifth Street

Los Angeles, CA 90013

(213) 896-6000

QAIS GHAFARY

CAITLIN MATHENY

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

(212) 839-8430

Counsel for Petitioners

April 23, 2019

* Counsel of Record

TABLE OF CONTENTS

Page

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

ii

INTRODUCTION .................................................

1

ARGUMENT .........................................................

2

I. PETITIONERS PRESENTED AND THE

TENNESSEE SUPREME COURT DECIDED THE QUESTION PRESENTED .....

2

II. THIS CASE SQUARELY PRESENTS THE

IMPORTANT ISSUE OF WHETHER

ABANDONING THE SWORD-SHIELD

RULE FOR METHOD-OF-EXECUTION

CLAIMS VIOLATES THE DUE PROCESS

CLAUSE ........................................................

7

CONCLUSION .....................................................

11

(i)

ii

CASES

TABLE OF AUTHORITIES

Page

Adams v. Robertson, 520 U.S. 83 (1997) ......

6

Bankers Life & Cas. Co. v. Crenshaw, 486

U.S. 71 (1988) .............................................

6

Bittaker v. Woodford, 331 F.3d 715 (9th Cir.

2003) ...........................................................

9

Bucklew v. Precythe, 139 S. Ct. 1112

(2019) .......................................................... 1, 10

Charleston Fed. Sav. & Loan Ass’n v. Alderson, 324 U.S. 182 (1945) ............................

2

Eddings v. Oklahoma, 455 U.S. 104

(1982) ..........................................................

3

Greene v. McElroy, 360 U.S. 474 (1959) .......

7

Hunt v. Blackburn, 128 U.S. 464 (1888) ...... 7, 9

Price v. Comm’r, Ala. Dep’t of Corr., No.

19-11268, 2019 WL 1550234 (11th Cir.

Apr. 10, 2019) .............................................

10

State v. Thacker, 164 S.W.3d 208 (Tenn.

2005) ...........................................................

4

Street v. New York, 394 U.S. 576 (1969).......

3

Taylor v. Kentucky, 436 U.S. 478 (1978) ......

4

United States v. Williams, 504 U.S. 36

(1992) ..........................................................

2

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980)...........................

4

Willy v. Admin. Review Bd., 423 F.3d 483

(5th Cir. 2005) ............................................

9

OTHER AUTHORITY

Stephen M. Shapiro et al., Supreme Court

Practice (10th ed. 2013) .............................

2

INTRODUCTION

This Court just a few weeks ago declared that “[t]he

proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously.” Bucklew v. Precythe,

139 S. Ct. 1112, 1134 (2019). The petition asks this

Court to fulfill that promise.

The Supreme Court of Tennessee adopted a rule that

violates fundamental fairness and due process to resolve the petitioners’ method-of-execution claim. As

the petition demonstrated, there is an uncommonly

long history and broad consensus in favor of a principle

that prohibits the government (and private parties)

from using secret evidence to prevail in litigation. Pet.

17-21. That should come as no surprise. Secret evidence is the stuff of totalitarian regimes; the mere sayso of a government official does not establish an assertion as a true fact. Free people have the right to insist

on seeing, and the opportunity to test, the evidence

upon which the government relies. Yet the Tennessee

Supreme Court rejected petitioners’ method-of-execution claim based on the (second-hand) say-so of government officials, shielding their assertions from scrutiny

behind Tennessee’s execution secrecy statute. Because

numerous other states have execution secrecy statutes, moreover, this decision threatens to badly distort

efforts to ensure that the states live up to the obligations of the Eighth Amendment.

Respondents only lightly defend the ruling on the

merits. They suggest that the state interest in secrecy

is sufficiently strong to justify maintaining secrecy

even as they use the evidence to establish facts necessary to the support judgment. Opp. 23-24. That is

wrong, and petitioners welcome the chance to fully

demonstrate why in merits briefing. This reply instead

2

will focus on demonstrating both that petitioners

raised the issue below and that the decision provides a

strong vehicle for addressing the issue.

ARGUMENT

PETITIONERS PRESENTED AND THE

TENNESSEE SUPREME COURT DECIDED

THE QUESTION PRESENTED.

The question was both pressed and passed on below,

the question is one of law for which further factual development would be futile, and there is no bar to review. See United States v. Williams, 504 U.S. 36, 41

(1992) (rule that argument must be pressed or passed

on below operates “in the disjunctive”).

“Where it appears from the opinion of the state court

of last resort that a state statute was drawn in question, as repugnant to the Constitution, and that the

decision of the court was in favor of its validity, [this

Court] ha[s] jurisdiction on appeal.” Charleston Fed.

Sav. & Loan Ass’n v. Alderson, 324 U.S. 182, 185

(1945). The Court thus “need not inquire how and

when the question of the validity of the statute was

raised” in the briefing below. Id. at 185-86; see Stephen M. Shapiro et al., Supreme Court Practice 197

(10th ed. 2013) (“Once it is clear that the highest state

court has actually passed on the federal question, . . .

[a]n irrebuttable presumption is created that the federal question was timely and properly raised.”).

Here, the Tennessee Supreme Court expressly addressed petitioners’ claim that the discovery rulings

based on the State’s secrecy statute were contrary to

law. Petitioners’ argument that the secrecy statute impaired their Eighth Amendment claim was the first argument the Tennessee Supreme Court dealt with, with

3

express reference to how federal courts would address

it:

First, the Plaintiffs argue that the availability requirement should not apply to them because of

discovery disputes and “state secrecy laws related

to executions.” See Tenn. Code Ann. § 10-7504(h)(1). Acceptance of this argument would require this Court to establish new law not recognized in any federal court or in any other state.

We decline to do so.

Pet. App. 12a (internal footnote omitted). That holding, alone, defeats respondents’ jurisdictional objections. Charleston Fed. Sav., 324 U.S. at 185-86.

Respondents, relying on a word search, criticize the

briefing below for failing to use the phrase “due process” when raising the issue. See Opp. 11-13, 17-19. In

truth, “[n]o particular form of words or phrases is essential, but only that the claim of invalidity and the

ground therefor be brought to the attention of the state

court with fair precision and in due time.” Street v.

New York, 394 U.S. 576, 584 (1969) (quoting New York

ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928)).

“[I]f the record as a whole shows either expressly or by

clear intendment that this was done, the claim is to be

regarded as having been adequately presented.” Id.

(quoting Zimmerman, 278 U.S. at 67); see Eddings v.

Oklahoma, 455 U.S. 104, 113 n.9 (1982) (“[J]urisdiction does not depend on citation to book and verse.”)

(citing Zimmerman, 278 U.S. at 67).

Respondents’ opposition highlights petitioners’

“clear intendment” to present a federal constitutional

claim. See Opp. 11-12, 18. Respondents cite petitioners’ arguments that the invocation of the drug supplier

statute created a “cloak of secrecy” that precluded petitioners from obtaining “discovery essential to [their

4

Eighth Amendment] claims,” Brief of Plaintiffs-Appellants at 217 n.81, 308, Abdur’Rahman v. Parker, 558

S.W.3d 606 (Tenn. 2018) (No. M2018-01385-SC-RDOCV) [hereinafter “Brief of Plaintiffs-Appellants”], and

that the lower court’s discovery orders “caused a grave

injustice” that “effectively deprived [petitioners] of the

ability to obtain evidence to bolster their claims,” id.

at 321,” and “effectively insulate[d] Tennessee’s execution methods from state or federal constitutional review,” id. at 322. Most explicitly, petitioners argued

that “[d]ue process of law, and the Law of our Land,

require better” than allowing secondhand testimony

about the Drug Procurer’s “failure to secure Pentobarbital” to “establish unavailability” in the face of petitioner’s evidence from “the PowerPoint and the relevant notes.” Id. at 219.

Those arguments presented the federal issue. See

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

U.S. 155, 159 n.5 (1980) (generalized “due process” arguments addressed to “the Florida Constitution and

its Federal counterpart” held sufficient for taking

claim) (emphasis omitted); Taylor v. Kentucky, 436

U.S. 478, 482 n.10 (1978) (objection invoking “fundamental principle[s] of judicial fair play” should have

“sufficed to alert the trial judge to petitioner’s reliance

on due process principles”) (alteration in original).

While respondents contend that these references could

be viewed as asserting state law claims, see Opp. 11

n.5, “the Tennessee Constitution has been held to be

more protective of individual rights than the test under the United States Constitution,” State v. Thacker,

164 S.W.3d 208, 249 (Tenn. 2005) (citing State v. Stephenson, 878 S.W.2d 530, 544 (1994) (per curiam), abrogated by State v. Saylor, 117 S.W.3d 239 (Tenn.

2003)), and thus would subsume a federal challenge.

In all events, it is hard to imagine a scenario striking

5

more at the heart of federal due process than one

where essential evidence known only to the State is

used to block a litigant from proving his execution will

violate the Eighth Amendment. See, e.g., Br. for Conservatives Concerned About the Death Penalty as

Amicus Curiae Supp. Pet’rs at 2-3, 11-14. When the

Tennessee Supreme Court decided that there were no

procedural irregularities in how this claim was resolved, it was deciding that issue as a matter of both

federal and state constitutional law.

Any doubt on this point is dispelled by Justice Lee’s

dissenting opinion. While a dissent does not confirm

whether the federal question was decided, see Opp. 16,

it is obvious that the court understood the federal issue

to have been presented. After recounting the “extraordinary time constraints” and the “cloak of secrecy” that

stymied petitioners’ litigation, Pet. App. 27a, 30a, Justice Lee concluded that “[p]etitioners were denied due

process in the form of a fundamentally fair process,”

Pet. App. 30a. On this score, respondents ignore that

Justice Lee grounded her reasoning explicitly in this

Court’s federal due process jurisprudence. See id. (construing Boddie v. Connecticut, 401 U.S. 371, 374

(1971), and citing Armstrong v. Manzo, 380 U.S. 545,

552 (1965)). The federal issue was pressed below.1

It does not matter whether “the discovery limitations

were among several [other] factors that combined [in

Justice Lee’s view] to deprive petitioners of due process.” Opp. 16. There is no reason why Justice Lee

1 Respondents acknowledge petitioners advanced their due process claim in the trial court, albeit in a manner respondents criticize as insufficient. See Opp. 19 (noting petitioners asserted that

“deprivation of the discovery sought . . . would be a separate and

independent due process violation of both the United Sates [sic]

and Tennessee Constitutions.” (quoting IV 469)).

6

would have limited herself to this one procedural irregularity in her dissent. She need not have done so to

have written in such a way that it is clear that petitioners presented the issue, which is matters for present purposes.

Moreover, as Justice Lee’s opinion highlights, petitioners faced extraordinary challenges in presenting

their claims on a “rocket docket.” Pet. App. 26a. It was

for this reason that petitioners separately argued that

“the appellate schedule in this case den[ied] Plaintiffs’

appellate due process,” Brief of Plaintiffs-Appellants

at 13, which the State criticizes as showing that the

petitioners “knew how to raise a due process argument,” Opp. 18. It would be perverse to penalize petitioners for having raised, under challenging circumstances, additional due process claims that resonated

with Justice Lee.

Finally, no “practical considerations” counsel

against review. Adams v. Robertson, 520 U.S. 83, 90

(1997) (per curiam) (quoting Bankers Life & Cas. Co.

v. Crenshaw, 486 U.S. 71, 79 (1988)). The State identifies no need for a more “developed record on appeal.”

Bankers Life & Cas. Co., 486 U.S. at 79. To the contrary, the State makes clear that, in its view, no circumstances would ever justify revealing supplier identities, “even pursuant to a protective order,” Opp. 2324, because it would be “impossible[] to carry out the

death penalty,” id. That position is factually unsupportable, Pet. 21, contrary to settled law, id. at 22, irreconcilable with protective-order practice, id. at 23,

and contradicted by the evidence that just 20 out of 100

pharmacies had qualms about supplying execution

drugs. X at Ex. 105, p. 1477. But those arguments are

better left for the merits. For now, it is clear that no

further development of the record is necessary, and

this Court can and should review the question.

7

THIS CASE SQUARELY PRESENTS THE

IMPORTANT ISSUE OF WHETHER ABANDONING THE SWORD-SHIELD RULE FOR

METHOD-OF-EXECUTION CLAIMS VIOLATES THE DUE PROCESS CLAUSE.

1. Respondents try to muddy the prospect of this

Court’s review by distorting petitioner’s claim. Petitioners do not seek to “[r]equir[e] States to identify

their drug suppliers,” Opp. 25, as part a campaign of

“unlimited discovery,” id. at 3, to “discover grievances,” id. at 21 (quoting Lewis v. Casey, 518 U.S. 343,

354 (1996)). Petitioners could not have been clearer:

This is “not [a] challenge [to] the constitutionality of

state secrecy laws in general,” Pet. 4, nor does it seek

unlimited discovery in search of contrived harms, see

id. at 21-22 (noting “Tennessee’s right” to invoke the

statute). Instead, petitioners ask only that the elementary principles of fairness reflected in the sword-shield

rule, e.g., Hunt v. Blackburn, 128 U.S. 464, 470 (1888),

be applied consistently to claims implicating needless

human suffering in violation of the Constitution, and

that this Court recognize that due process forbids the

State from relying on secret evidence to defeat a claim

alleging “serious[] injur[y]” at the government’s hands,

Greene v. McElroy, 360 U.S. 474, 496 (1959).

If any further clarity were needed: Governments can

have secrets. This petition poses no threat to the ability of governments that wish to keep execution-related

personnel and vendors secret. This case is about one

legal consequence of the decision to keep such information secret. The State cannot rely on its secret information to defeat a method-of-execution claim.

Respondents deny the critical role its secret evidence

played in the proceedings, noting that petitioners bore

the burden of proving an available alternative. See

8

Opp. 21. True. But petitioners met the burden. Petitioners showed, using the State’s Power Point, that

there were roughly 10 pharmacies that had pentobarbital on hand and were willing to sell it to the State,

Pet. 8, and that at least one of those pharmacies made

a concrete offer to the State to sell enough pentobarbital for one or two executions. Pet. 9; XI at Ex. 105, p.

1503.

That would have been enough for a trier of fact to

conclude that pentobarbital was available. Respondents prevailed because they presented testimony that,

despite what the documents suggested, state officials

had concluded that pentobarbital was not reasonably

available. Respondents highlight testimony that

“[n]one of these [pharmacies] worked out” because otherwise-willing suppliers could not provide a “sufficient

quantity of pentobarbital.” Opp. 10. That evidence

came from State officials who, in respondents’ words,

testified that a “staff member [had] provided them information showing that pentobarbital was not available.” Opp. 9 (emphasis added); see also Pet. 11; XXXVII

1313-14 (Parker testifying that “any knowledge [he]

had [was] based upon conversations . . . with other individuals”). Petitioners were prevented from conducting discovery or cross-examination to probe what that

“information” was, why the pharmacy relationships

did not “work out,” and how much pentobarbital was

“sufficient.” The State officials’ say-so was protected

from attack or any inspection. That is the issue.

It is true that petitioners called the officials to the

stand. See Opp. 22. But who summoned a witness is

irrelevant. The substantive testimony is what matters;

the government cannot use secret evidence to defeat

petitioners’ claim. Had the witness not been allowed to

testify about what the Drug Procurer purportedly told

them about the Power Point, or had petitioners been

9

allowed to examine the Drug Procurer or to view the

unredacted Power Point, the outcome may well have

been different.

Respondents also contend that the sword-shield doctrine cannot apply here because the Tennessee secrecy

statute is not a “law of privilege.” Opp. 22. That is a

red herring. As the cases cited in the petition demonstrate, the basis for concealing evidence—whether because of privilege, trade secrets, or otherwise, see Pet.

18-20—does not affect the consequences of doing so:

“[W]hen a party . . . uses confidential information

against his adversary (the sword), he implicitly waives

its use protectively (the shield) under that privilege.”

Willy v. Admin. Review Bd., 423 F.3d 483, 497 (5th Cir.

2005); see also Hunt, 128 U.S. at 470-71 (“When Mrs.

Blackburn entered upon a line of defense which involved what transpired between herself and [her attorney], and respecting which she testified, she waived

her right” to invoke privilege over those communications). Here, the State could have maintained confidentiality by not testifying about what confidential

witnesses have said about the supposed unavailability

of pentobarbital. But if it relies on such evidence, it has

to give up claims of secrecy “to the extent necessary to

give [its] opponent a fair opportunity.” Bittaker v.

Woodford, 331 F.3d 715, 720 (9th Cir. 2003) (en banc).

Finally, respondents fault petitioners for not having

more evidence of pentobarbital’s availability. Respondents assert petitioners should have introduced expert

testimony on availability, citing another case where

plaintiffs pursued that approach—and the court found

that testimony unpersuasive. See Opp. 23 (citing Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268,

1302-04 (11th Cir. 2016), abrogated on other grounds

by Bucklew, 139 S. Ct. at 1127-29). But that is a dis-

10

traction. That petitioners might have tried to overcome respondents’ constitutional violation by offering

other evidence does not in the least diminish the violation and the need for this Court to correct the error.

2. Unable to avoid that the issue is presented, respondents’ fallback is that there is no split of authority. Opp. 20-22. Not so. Tennessee’s refusal to apply

the sword-shield doctrine to lethal-injection litigation

starkly departs from the fairness principle applied by

this Court and every lower court for well over a century. Pet. 17-22 & Pet. App. F. Respondents take the

absolutist view that supplier identities can never be

disclosed in litigation. That is at least in tension with

this Court’s conclusion in Bucklew that a prisoner’s

ability to establish the availability of an alternative

“can’t be controlled by the State’s choice of [what] to

authorize in its statutes.” 139 S. Ct. at 1128-29; see

also id. at 1135-36 (Kavanaugh, J., concurring). The

state cannot alter a fundamental principle of law like

the sword-shield rule and thereby make impregnable

its assertions of the unavailability of an alternative

method.2

2 The Eleventh Circuit recently held that, “[i]f a State adopts a

particular method of execution . . . it thereby concedes that the

method of execution is available to its inmates.” Price v. Comm’r,

Ala. Dep’t of Corr., No. 19-11268, 2019 WL 1550234, at *7 (11th

Cir. Apr. 10, 2019) (per curiam) (construing Bucklew). Tennessee

authorized a pentobarbital method until four days before trial.

Pet. App. 5a. At a minimum, Tennessee’s continued authorization

of a pentobarbital method until so shortly before trial raises questions that the sword-shield rule is designed to ensure are answered fairly.

11

CONCLUSION

The petition should be granted.

Respectfully submitted,

KELLEY J. HENRY

AMY D. HARWELL

RICHARD TENNENT

KATHERINE DIX

OFFICE OF FEDERAL PUBLIC

DEFENDER, MIDDLE

DISTRICT OF TENNESSEE

810 Broadway, Suite 200

Nashville, TN 37203

(615) 736-5047

KATHLEEN MORRIS

42 Rutledge Street

Nashville, TN 37210

(615) 242-3200

BRADLEY MACLEAN

1702 Villa Place

Nashville, TN 37212

(615) 943-8716

ROBERT N. HOCHMAN *

KELLY HUGGINS

EMILY A. ROSENBERG

SIDLEY AUSTIN LLP

One S. Dearborn Street

Chicago, IL 60603

(312) 853-7000

rhochman@sidley.com

COLLIN P. WEDEL

SIDLEY AUSTIN LLP

555 W. Fifth Street

Los Angeles, CA 90013

(213) 896-6000

QAIS GHAFARY

CAITLIN MATHENY

SIDLEY AUSTIN LLP

787 Seventh Avenue

New York, NY 10019

(212) 839-8430

Counsel for Petitioners

April 23, 2019

* Counsel of Record