Petition for Writ of Certiorari — Poyner v. Murray

Supreme Court brief1993

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SYVASKY LAFAYETTE POYNER,

Petitioner,

Vv.

EDWARD W. MURRAY,

ELLIS B. WRIGHT, JR.,

and JOHN DOE,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Alexander H. Slaughter

Counsel of Record

Dorothy C. Young

Shannon E. Sinclair

McGuire, Woods, Battle & Boothe

One James Center

901 E. Cary Street

Richmond, Virginia 23219

(804) 775-1000

Lewis F. Powell, III

Harry M. Johnson, III

Sean P. McMullen

Hunton & Williams

Riverfront Plaza, East Tower

951 E. Byrd Street

Richmond, Virginia 23219

William H. Wright, Jr.

719 West 33rd Street

Richmond, Virginia 23225

Counsel for Petitioner, Syvasky L. Poyner

— + awe

QUESTIONS PRESENTED FOR REVIEW

1. Did the Court of Appeals for the

Fourth Circuit Exceed Its Jurisdiction By

Issuing a Mandate Ordering the United

States District Court for the Eastern

District of Virginia to Dismiss Poyner's

§ 1983 Lawsuit on an Appeal of a

Discovery Order Entered in the Ordinary

Progress of Poyner's Lawsuit While

Defendants' Motion to Dismiss Was Still

Pending in the District Court Prior to

Briefing and Oral Argument?

2 Did the Court of Appeals for

the Fourth Circuit Err By Failing to

Consider the Claims in Poyner's Complaint

Challenging Virginia's Electric Chair and

Virginia's Execution Procedures When It

Issued a Mandate Ordering the United

States District Court for the Eastern

District of Virginia to Dismiss Poyner's

§ 1983 Lawsuit?

3. Did the Court of Appeals for

the Fourth Circuit Err In Basing Its

Decision to Issue a Mandate Ordering the

United States District Court for the

Eastern District of Virginia to Dismiss

Poyner's § 1983 Lawsuit on the 100-year-

Old precedent of In re Kemmler, 136 U.S.

436 (1890)?

wh he

II.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .

TABLE OF CONTENTS ..... ee

TABLE OF AUTHORITIES ...

PETITION FOR WRITE OF CERTIORARI

OPINIONS BELOW ..... cn

JURISDICTION ...

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE...

REASONS FOR GRANTING THE WRIT

A. The Court Of Appeals Did Not

Have Jurisdiction To Issue Its

Order Because The District

Court's Order Was A Non-

Appealable ne

Discovery Order ..

B. The Court Of Appeals Ruled

Incorrectly On The Merits of

Poyner's Claim Because It

Misconstrued The Nature Of

The Action

1. Poyner's Complaint

Challenges Virginia's

Electric Chair And

Virginia's Execution

Procedures As Well As

Electrocution Generally

2. This Court Should Also

Reverse The Fourth Circuit's

Summary Dismissal Because

-iii-

The 100-Year-Old Precedent

Is No Longer Legally Or

Factually Supportable ... 34

X. PRAYER FOR RELIEF ....... 56

XI. APPENDIX TO PETITION FOR WRIT

OF CERTIORARI ...... ++. Al

-iv-

IiIt.

TABLE OF AUTHORITIES

FEDERAL CASES

Blake v. Hall, 668 F.2d 52 (lst Cir.

1981), cert. denied,

456 U.S. 963 (1962) ....sesccee

Vv ’

347 U.S. 483 (1954) . .. 47, 48, 49,

orn Zant, 708 F.2d 549 (11th Cir.

voy “cert, denied, 467 U.S. 1220

oi.) ia . . oe

Corp., 311 U.S. 282 (1940) ...

, 429 U.S. 97

wen 66 6S e es ee 8 6 & ee

Funchess v. Wainwright, 788 F.2d 1443

(llth Cir.), oaKke denied, 475 U.S.

1133 (1986) .. ey ie

Furman v. Georgia, 498 U.S. 238

Co Pere eee ee ee

G Vv. ,

871 F.2d 863 (9th Cir. 1989) .. 23,

Gre Vv. la, 428 U.S. 153

[ae 6: wi 6 eee ve “ae

-VvV=

In re Howe, 800 F.2d 1251

(4th Cir. 1986) . . . . . * . . . > . 22

Ingraham v. Wright, 430 U.S. 651

(1977) >. >. > . * J . = . a > >. . . * 36

International Prods. Corp. v. Koons,

325 F.2d 403 (2d Cir. 1963) ..... 24

Jackson v. Bishop, 404 F.2d 571

ns on +6 6 oi6 6 6 6 & « =e 2

v , 759 F.2d 1503

(llth Cir. 1985), aff'd, 781

F.2d 1482 (llth Cir. 1986) ... 35, 36

Jones v. Whitley, 938 F.2d 536

(Sth Cir.), cert. denied,

S.8. , 333 S. Ge. BS (R08) « ee e 8

In re Kemmler, 136 U.S. 436 (1890) . ii,

BSe Be 280 See See Be Bee 48,

41, 42, 43, 45, 48, 54, 55

Vv ith, 820 F.2d 1137

Lindsey v. Smith

(llth Cir. 1987), cert. denied.

489 U.S. 1059 (1989) er ee . 35, 36

Lowenfield v. Phelps, 817 F.2d 285

(Sth Cir. 1987), aff'd,

ae en On ~~ -« » «6 «2s 2

Martin v. Foti, 561 F. Supp. 252

fieme Ec SPOGP) wc ec ec eo svetbeseeee 45

McCleskey v. Kemp, 481 U.S.

fll —E Se eee

-vi-

North Carolina Ass'n of Black

Lawyers v. North Carolina Bd.

of Law Examiners, 538 F.2d 547

(4th Cir. 1976) .... a Se

Plessy v. Ferguson, 163 U.S. 537

(1896) . _ * *. . _ . . 7 *. >. . . 48, 49

Porter v. Wainwright, 805 F.2d 930

(llth Cir. 1986), cert.

denied, 482 U.S. 918 (1987) ..... 37

Poyner v. Bair, 488 U.S. 871 (1988) .. 4

Poyner v. Commonwealth, 474 U.S.

Se ee

, No. 92-CV-815

(E.D. Va. filed Dec. 10, 1992) .... 5

, No. 93-6052

(4th Cir. January 19, 1993) .... 6, 7

Ralph v. Warden, 438 F.2d 786

(4th Cir. 1970), cert. denied,

408 U.S. 942 (1972) ... 37, 43, 44, 46

Ritter v. Smith, 568 F. Supp. 1499

(S.D. Ala. 1983), aff'd in relevant

726 F.2d 1505 (11th Cir. 1984),

cert. denied, 469 U.S. 869 (1984) . . 33

Rummel _v. Estelle, 445 U.S. 263

ee aaa ae ae ee ee ee ee ee ee

-vii-

Spinkellink v. Wainwright, 578 F.2d 582

(Sth Cir. 1978), cart. denied, 440 U.S.

976 (1979) ... ;

State ex rel Francis v. Resweber,

5 ee Pree

’

State ex rel. Tindal _v. Block

717 F.2d 874 (4th Cir. 1983),

cert. denied, 456 U.S. 1080 (1984)

Sullivan v. Dugger, 721 F.2d 719

(2aGm Gae. 2963) « © ew co eo

Switzerland Cheese Ass'n v._

E. Horne's Market, Inc.,

fo % & ieee

Thomas _v. Jones, 742 F. — 598

= ae Pre .

Trop v. Dulles, 356 U.S. 86 (1958)

Watson v. Blackburn, 756 F.2d 1055

(Sth Cir. 1985), cert. denied,

476 U.S. 1153 (1986) ..

Wilson v. Butler, 813 F.2d 664

(Sth Cir. 1987), cert.

denied, 484 U.S. 1079 (1988)

STATE CASES

Aldridge's Case, 2 Va. Cas. 447 (1824)

Beaver v. Commonwealth,

352 S.E.2d 342 (Va.), cert. denied,

483 U.S. 1033 (1987)

-viii-

Buenoano v. Dugger, Slip Op. No.

90-473-CIV-ORL-19, 1990 WL

119637 (M.D. Fla. 1990) ...... . 33

Commonwealth v. White, Circuit Court for

Loudoun County, Crim. No. 8129

(February 11, 1993) .....«. -« 19, 54

Hart v. Commonwealth, 109 S.E. 582

_ tt | =o aa a

Hoke _v. Commonwealth,

377 S.E.2d 595 (Va.), cert. denied,

oe te eee en as bt ak ce eo ew

Martin v. Commonwealth, 271 S.E.2d 123

, > Pens ee a ee ae

Vv Ss P

a ae ee cee cs x cs se cae; 2

Poyner v. Commonwealth, 229 Va. 401,

329 S.E.2d 815 cert. denied sub nom.

Poyner v. Virginia, 474 U.S. 865

ne: & 6S ete ele le be-bk ee es 6 6

Stockton v. Commonwealth, 314 S.E.2d 371

(Va.), cert. denied, 469 U.S. 873

nn. 4 6 aeons oe ek Se 6 4 ee Oe

Stockton v. Commonwealth,

402 S.E.2d 196 (Va.), cert. denied,

U.8. , 333 BS. GB. 300 (1001) . . 37

Townes v. Commonwealth,

362 S.E.2d 650 (Va. 1987),

cert. denied, 485 U.S. 971 (1988). . 37

-ix-

Va. Code §53.1-233 (Repl. Vol. 1988), IV.

1 — a 2 oe oe rape PETITION FOR WRIT OF CERTIORARI

TO: THE HONORABLE CHIEF JUSTICE

AND ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED

FEDERAL STATUTES

Federal Rule of Civil Procedure

asa ee tk eee ee ee ee STATES:

a a ee Petitioner respectfully prays that a

See Gee 6° 6.6 €. 6 6:6 6 6 & 6s ee a

ee Oa @ BE AEN es a ek se Writ of Certiorari issue to review the

ee a ee order of the Court of Appeals for the

ge ae Se nee Fourth Circuit dated January 19, 1993,

26 U.8.C. § 1893(a)(1) . . . 36, 17. 22. issuing a mandate to the United States

wr Ss aN District Court for the Eastern District

7 on Coe +e oe eS ee of Virginia to dismiss the class action

es a 2 os ee er § 1983 lawsuit filed by Petitioner on

42 U.S.C. § 2963 . « LA, 2, 3, 8B, 10, 489

behalf of himself and others similarly

OTHER AUTHORITIES situated.

16 Wright, Miller, Cooper and Gressman,

Federal Practice and Procedure:

Jurisdiction § 3922 (1966) ‘a Ue gas ae

-xX=—

vV.

OPINIONS BELOW

Poyner was originally convicted of

five counts of capital murder in 1984 in

the respective circuit courts of

Williamsburg, Hampton, and Newport News.

Poyner was sentenced to death for

each count. As of that time, Virginia's

statutes required that death sentences be

carried out by electrocution at the State

Penitentiary in Richmond. .Va. Code §

53.1-233 (Repl. Vol. 1988), amended, Va.

Code § 53.1-233 (Repl. Vol. 1991) (the

amendment rescinded the requirement that

executions be performed in Richmond).

Poyner appealed the convictions and death

sentences to the Supreme Court of

Virginia, which affirmed each conviction

and death sentence. Poyner Vv.

Commonwealth, 229 Va. 401, 339 S.E.2d

815, cert. denied sub nom. Poyner v.

Virginia, 474 U.S. 865 (1985). Although

Poyner generally challenged the

constitutionality of Virginia's capital

murder statute on direct appeal to the

Supreme Court of Virginia, see Poyner v.

Commonwealth, 229 Va. at 406, 329 S.E.2d

at 820, he did not challenge the method

of execution as it existed at that time.

A petition for a Writ of Certiorari was

denied by this Court on October 7, 1985.

See Poyner v. Commonwealth, 474 U.S. 865,

888 (1985).

Poyner attempted unsuccessfully to

collaterally attack the convictions

through petitions for habeas corpus

relief in state and federal courts.

Poyner filed petitions for writs of

habeas corpus in each of the convicting

courts. Each court denied the respective

petition after hearing argument but

without evidentiary hearings, and the

Supreme Court of Virginia refused

Poyner's petitions for appeal. This

Court subsequently denied Poyner's

Petition for writ of certiorari. Poyner

v. Bair, 488 U.S. 871 (1988).

Poyner then sought relief in the

federal courts, filing three separate

petitions for writs of habeas corpus in

the United States District Court for the

Eastern District of Virginia on January

12, 1989. A United States Magistrate

recommended that all three of Poyner's

petitions be denied and dismissed. By

three orders, dated December 21, 1990,

the district court adopted and approved

the findings and recommendations of the

magistrate's reports, denied Poyner's

objections thereto, and dismissed his

petitions. Poyner's appeals to the Court

of Appeals for the Fourth Circuit were

denied on May 8, 1992. This Court denied

Poyner's Petition for Writ of Certiorari

on November 2, 1992.

Poyner recently attempted to raise

the issue of the constitutionality of

Virginia's method of execution by

electrocution in federal court in a class

action under 42 U.S.C. § 1983, but was

denied the opportunity to present his

evidence there. Poyner v. Murray, No.

92-CV-815 (E.D. Va. filed Dec. 10,

1992). The Fourth Circuit thwarted

Poyner's attempt to present evidence on

lappendix, pp. 1 - 55 (hereinafter A .)

-5-

this issue when, on appeal of a simple

discovery order and without briefs or

arguments, it ordered the case to be

dismissed. Poyner v. Murray, No. 93-6052

(4th Cir. January 19, 1993).* The

Fourth Circuit's order did not even

address Poyner's claim concerning

Virginia's particular method of

electrocution; rather, the court relied

on numerous cases standing for the

proposition that electrocution is not per

se unconstitutional. The Fourth

Circuit's Order also did not consider

directly the issue that was raised in the

notice of appeal, but took the

extraordinary step of directing the

District Court to dismiss Poyner's

lawsuit forthwith with prejudice. The

2A69-A77.

Fourth Circuit's Mandate issued that same

evening. ? Poyner's subsequent petition

for rehearing, petition for rehearing en

banc and petitions for a recall of the

mandate were denied. Poyner v. Murray,

No. 93-6052 (4th Cir. February 17,

1993) .4

This petition for certiorari to this

Court seeks review of the Fourth

Circuit's Order issuing a Mandate to the

District Court to dismiss Poyner's § 1983

Class action lawsuit.

3A78.

4A79-A81.

vI.

JURISDICTION

Petitioner seeks review of the Court

of Appeals for the Fourt* Circuit's Order

entered on January 19, 1993, issuing a

Mandate to the District Court to dismiss

Petitioner's § 1983 class action lawsuit.

This Court's jurisdiction is invoked

pursuant to 28 U.S.C. § 1254 (1).

Vit.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the United

States Constitution provides:

Excessive bail shall not be

required, nor excessive fines

imposed, nor cruel and unusual

punishments inflicted.

42 U.S.C. § 1983 provides:

Every person who, under color

of any statute, ordinance,

regulation, custom, or usage, of any

State or Territory or the District

of Columbia, subjects, or causes to

be subjected, any citizen of the

United States or other person within

the jurisdiction thereof to the

deprivation of any rights,

privileges, or immunities secured by

the Constitution and laws, shall be

liable to the party injured in an

action at law, suit in equity, or

other proper proceeding for redress.

For the purposes of this section,

any Act of Congress applicable

exclusively to the District of

Columbia shall be considered to be a

statute of the District of Columbia.

28 U.S.C. § 1292 provides, in

relevant part:

[Tj)he courts of appeals shall

have jurisdiction of appeals from:

(1) Interlocutory orders

of the district courts of the

United States, ... or the

judges thereof, granting,

continuing, modifying, refusing

or dissolving injunctions, or

refusing to dissolve or modify

injunctions ....

VIII.

STATEMENT OF THE CASE

On December 10, 1992, Syvasky L.

Poyner, on behalf of himself and all

others similarly situated, by counsel,

filed an action based on 42 U.S.C. § 1983

seeking a declaration that the

administration of death sentences by

electrocution as practiced by the

Commonwealth of Virginia constitutes

cruel and unusual punishment, such that

the Commonwealth must be enjoined from

performing executions in this manner.

(A1-A55). Poyner contended that an

evidentiary hearing on the nature of

electrocution, which was to include

testimony of preeminent experts in the

relevant fields of science and medicine,

was necessary to determine whether the

-10-

long-established but rarely-challenged

principle that electrocution is not cruel

and unusual still holds true upon an

examination with the benefit of modern

medical knowledge.

After filing his Complaint on

December 10, 1992, Poyner attempted to

obtain discovery in the ordinary course

of the litigation by filing discovery

requests, including the ones that

resulted in the District Court's Order at

issue here. (A56-A66). He sought to

observe and videotape the testing of the

electric chair, to videotape the

execution of Charles Sylvester Stamper,

scheduled for January 19, 1993, and to

have a neuropathologist observe Stamper's

autopsy and perform a routine examination

of his brain tissue. The District Court

-ll-

heard oral argument on Poyner's discovery

motions on January 15, 1993, at which

time the defendants' Motion to Dismiss

and Motion for Protective Order, among

other motions, were pending. Poyner's

time to file his opposition briefs to

these motions had not yet run, oral

argument had not yet been held and,

consequently, the District Court had not

yet ruled on defendants' motions.

On the afternoon of January 19,

1993, the District Court issued its Order

related to Poyner's discovery motions,

granting certain requests relating to the

testing of the electric chair and the

autopsy. (A56-A66). Later that same

day, the defendants filed a notice of

appeal challenging only the District

-12-

Court's ruling regarding Stamper's

autopsy. (A67-A68).

Notwithstanding the agreement of

both the defendants and the Court of

Appeals for the Fourth Circuit that the

case presented an issue of immense public

importance, on January 19, 1993, the

Fourth Circuit panel abruptly directed

the District Court to dismiss Poyner's

Complaint. (A69-A77).

The matter came before the Fourth

Circuit panel on defendants' notice of

appeal from the District Court's order

permitting discovery. (A67-A68). Asa

result of the Fourth Circuit Court's

action, this "case of considerable public

interest" and the factual issues raised

by it remain unresolved -- thus

prolonging, for the antiquated technology

-13-

of the electric chair, one hundred years

of unwarranted immunity from public

scrutiny.

The precedents on which the Court of

Appeals based its ruling descend from a

decision that bears no relevance to

modern jurisprudence, medicine or

technology. That case, In re Kemmler,

136 U.S. 436 (1890) reviewed a New York

county court decision that did not

concern the Eighth Amendment, imposed on

the defendant a burden of proof

inconsistent with Eighth Amendment

jurisprudence, gave undue deference to

the factual findings of the New York

state legislature, and considered, to the

extent it considered it at all, medical

and scientific knowledge now obsolete.

Accordingly, Kemmler and its progeny have

-14-

become factually and legally irrelevant

to the question whether electrocution is

cruel and unusual. One hundred years of

reliance on a foundation so infirm should

not now shield the executioner's methods

from view.

The Fourth Circuit's decision also

misapprehends the actual allegations of

Poyner's Complaint, (A1-A55), which do

not merely challenge electrocution per

se, but also attack Virginia's particular

chair and Virginia's particular

procedures for the use of that chair.

The Fourth Circuit's decision rests

entirely on cases concerning non-

particularized attacks on electrocution

and overlooks that portion of Poyner's

Complaint that attacks Virginia's

particular chair and Virginia's

-15-

particular procedures. Such allegations

as these have received a hearing in

federal courts. That the Fourth Circuit

overlooked these aspects of the case is

understandable, since Poyner never had

the opportunity to file briefs on these

issues either in the Fourth Circuit or in

the District Court, and even the

defendants never filed briefs in the

Fourth Circuit.

Even if all this were not true, this

Court should grant petitioner a writ of

certiorari and reverse the Fourth

Circuit's ruling to correct the Fourth

Circuit's erroneous assumption of

jurisdiction. The Fourth Circuit's

decision assumed appellate jurisdiction

under 28 U.S.C. § 1292(a)(1) of what the

panel construed as a granted injunction,

-16-

altnough the District Court's discovery

order under Federal Rule of Civil

Procedure 34(a)(2) did not accord or

protect any of the relief requested in

the Complaint. Courts have consistently

ruled that orders that do not accord or

protect the substantive relief requested

in the Complaint are not injunctions

appealable pursuant to § 1292(a)(1).

Thus the Fourth Circuit panel's decision

overlooks material factual and legal

matters and is in conflict with decisions

of the Fourth Circuit and other courts of

appeals. The District Court's order,

which in no way pertains to the relief

requested in Poyner's Complaint, quite

Simply was not an injunction for the

purposes of § 1292(a)(1). Consequently,

-l7J-

the Fourth Circuit lacked jurisdiction to

direct dismissal of the Complaint.

Courts are charged with the duty to

ensure that no prisoner be subjected to

cruel and unusual punishment, no matter

how unpopular his crime. The courts

cannot discharge this duty without taking

evidence.

The Circuit Court for Loudoun County

agreed that a Virginia court must hear

evidence on this very issue.° The

Circuit Court for Loudoun County

recognized that no court has reviewed the

medical and scientific evidence

concerning electrocution in over 100

years, and that no court has ever taken

°"Poyner's counsel had appeared as

special counsel for the defendant White

for the sole purpose of presenting the

constitutional challenge to Virginia's

particular form of electrocution.

-18-

evidence on Virginia's method of

electrocution. In setting aside five

days to receive evidence, that court

stated:

And certainly science and

technology has advanced an

awful lot since 1890. And I

feel somewhere a court has got

to hear the evidence of what

the state of the art is now on

the effect of electricity on

the human body during the

course of execution by

electrocution in Virginia.

Transcript, Commonwealth v. White,

Circuit Court for Loudoun County, Crim.

No. 8129 (February 11, 1993), at 5.

(A82-A91). The evidentiary hearing,

however, never took place because the

Commonwealth dropped the capital murder

charge the next day and rendered the

issue moot.

Poyner simply wants an opportunity

to be heard on this issue. The Fourth

-19-

Circuit's premature dismissal of Poyner's

action has denied him this opportunity.

Poyner asks this Court to issue a writ of

certiorari to review the Fourth Circuit's

Order and thereafter to reverse the Order

to allow Poyner to present his evidence

before the District Court. As both the

Fourth Circuit and defendants noted, this

case arouses considerable public interest

and concerns.a matter of grave public

importance. In light of the matters set

forth above, this is a matter of

exceptional importance deserving the

grant of certiorari review.

-20-

Iz.

REASONS FOR GRANTING THE WRIT

A. The Court of Appeals Did Not Have

Jurisdiction To Issue Its Order

Because The District Court's Order

Was A Non-Appealable Interlocutory

The Court of Appeals for the Fourth

Circuit did not have jurisdiction to

consider the appeal of the discovery

Order relating to the autopsy of Charles

Sylvester Stamper or to direct the

District Court to dismiss Poyner's

Complaint. While the Court of Appeals

did not cite the statute upon which it

relied for jurisdiction,® it is apparent

*It is clear that the District

Court's Order permitting discovery of

Stamper's autopsy was an interlocutory

order, not a final judgment subject to

appeal pursuant to 28 U.S.C. § 1291. Nor

did the District Court's Order contain a

statement that an immediate appeal

pursuant to 28 U.S.C. § 1292(b) was

(continued...)

-21-

from the language of the Order that it

was relying upon 28 U.S.C. § 1292(a) (1):

[Tjhe order of the district

court is not any routine

discovery order but is, in

fact, an injunction and we

treat it as such. There is no

doubt that a refusal to comply

with the district court's order

of January 19, 1993 would be

punishable by contempt.

Order (January 19, 1993), at 2 (A69-A77).

However, even the most routine

discovery orders may be punishable by

contempt. See, e.g., In re Howe, 800

F.2d 1251 (4th Cir. 1986) (punishing

lawyer for contempt for failure to answer

interrogatories and requests for

6(...continued)

appropriate. Moreover, the defendants

did not seek a writ of prohibition or

mandamus pursuant to 28 U.S.C. § 1651,

and in any event, discovery orders issued

in the normal course of litigation are

self-evidently not a usurpation of

judicial power.

-22-

production). For the purposes of

obtaining jurisdiction under 28 U.S.c.

§ 1292(a)(1), an “injunction" must be

designed to accord or protect some or all

of the substantive relief sought by a

complaint in more than temporary fashion.

(e) Caroli . w Examiners, 538

F.2d 547, 548-49 (4th Cir. 1976); Gon v.

First State Ins. Co., 871 F.2d 863, 864-

65 (9th Cir. 1989), citing 16 Wright,

Miller, Cooper and Gressman, Federal

Practice and Procedure: Jurisdiction

§ 3922 at 29 (1966).

The Gon court noted that, in

assessing appealability, injunctions must

be distinguished from orders regulating

the conduct of litigation. Gon, 871 F.2d

at 865. Discovery orders are among those

-23:-

orders “regulating the conduct of

litigation" that are not considered

injunctions for the purposes of

§ 1292(a)(1) jurisdiction, even though

they are punishable by contempt. North

Carolina Ass'n, 538 F.2d at 548-49; Gon,

871 F.2d at 865; 16 Wright, Miller,

§ 3922 at 30. Similarly, the court in

+ j Vv. , 325

F.2d 403, 406 (2d Cir. 1963) noted:

We think it better... to

continue to read § 1292(a) (1)

as relating to injunctions

which give or aid in giving

some or all of the substantive

relief sought by a complaint

. and not as including

restraints or directions in

orders concerning the conduct

of the parties . . . unrelated

to the substantive issues in

the action, while awaiting

trial.

Otherwise, every discovery order would be

immediately appealable because it is

-24-

punishable by contempt. Such a dramatic

change in normal procedure would defeat

the principle of avoiding piecemeal

appeals. See Switzerland Cheese Ass'n v.

E. Horne's Market, Inc., 385 U.S. 23

(1966).

The District Court's discovery Order

granted no part of the substantive relief

sought by plaintiff's Complaint, which

sought a declaration that Virginia's mode

of execution by electrocution is cruel

and unusual punishment and an injunction

against further use of that method by the

Commonwealth. Rather, the Order would

have permitted Poyner to have an

electrical engineer inspect and videotape

the electric chair on a day when no

execution was planned and to have a

neuropathologist observe a routine

-25-

autopsy and conduct an examination on a

sample of brain tissue that was to be

made available by the routine removal and

sectioning of the brain by the state

pathologist.

The District Court's Order merely

provided Poyner with discovery reasonably

calculated to assist in proving his case

so that he might eventually obtain the

substantive relief he seeks. As such, it

was not an injunction for the purposes of

28 U.S.C. § 1292(a)(1). The Court of

Appeals had no jurisdiction to entertain

the defendants' appeal of a portion of

the interlocutory discovery Order entered

by the District Court. This Court,

therefore, should reverse the January 19,

1993 Order entered by the Fourth Circuit

-26-

and recall the Mandate that that Court

issued on January 19, 1993.

B. The Court Of Appeals Ruled

Incorrectly On The Merits of

Poyner's Claim Because It

Misconstrued The Nature

Of The Action.

In addition to acting without

jurisdiction, the Court of Appeals for

the Fourth Circuit acted without the

benefit of a full record for its

consideration.’ The Fourth Circuit

"In both cases cited by the Fourth

Circuit to support its extraordinary

action in dismissing plaintiff's lawsuit,

and unlike this case, the courts had a

complete record on which to base their

decisions. In Vv endence

, 311 U.S. 282, 287 (1940),

this Court held that a court of appeals

could dismiss and terminate litigation if

"insuperable objection to maintaining the

bill clearly appears." However, in

Deckert, defendants' motions to dismiss

had been briefed fully, argued, and ruled

upon by the district court. Further, the

(continued...)

-27-

panel's summary (and unexpected) Order

that Poyner's entire case be dismissed

was entered without briefing or oral

argument, either in the Court of Appeals

or in the District Court. Had there been

a fully-developed record for the Fourth

Circuit panel to consider when it ruled

on the merits of Poyner's action, it

’(...continued)

defendants specifically appealed the

district court's disposition of their

motions to dismiss. Thus, the court in

Deckert had before it a full record

regarding the motions to dismiss.

Similarly, in State ex rel. Tindal

v. Block, 717 F.2d 874 (4th Cir. 1983),

cert. denied, 456 U.S. 1080 (1984), the

Fourth Circuit recognized the necessity

of a full record before a court of

appeals dismisses a plaintiff's claims.

In Block, the Fourth Circuit noted that

it would not normally consider and

dispose of an issue raised but not

considered by the district court, but

made an exception in Block because the

record was "fully developed." Id. at

880.

-28-

would have realized that Poyner was

seeking an evidentiary hearing both to

show how Virginia's particular methods

and procedures for electrocution inflict

cruel and unusual punishment on condemned

inmates and to disprove the 100-year-old

factual premise of In re Kemmler, 136

U.S. 436 (1890), upon which the body of

precedent cited by the panel has

unquestioningly been built.

1. Poyner's Complaint Challenges

Virginia's Electric Chair And

Virginia's Execution Procedures

As Well As Electrocution

Generally

By abruptly dismissing Poyner's

lawsuit without the benefit of a complete

record, the Fourth Circuit misconstrued

Poyner's action as solely a broad-based

attack on electrocution. In its Order,

-29-

that Court stated that Poyner's “case

essentially contests the validity of the

Virginia statutes requiring execution by

electrocution as being invalid in

violation of the Eighth Amendment because

electrocution is cruel and unusual

punishment." Order at 2. (A69-A77).

In fact, Count II of Poyner's

Complaint specifically addresses

electrocution as it is carried out in

Virginia. As such, Count II is not a

broad attack on electrocution per se, but

rather brings into question whether

executions as carried out in Virginia's

electric chair violate the Eighth

Amendment prohibition against cruel and

unusual punishment. ®

8To the extent that this Court may

determine that Poyner has not raised a

(continued...)

-30-

No court has reviewed evidence about

Virginia's electric chair to determine

whether Virginia is unnecessarily

torturing prisoners. Even if

electrocution is a constitutionally

permissible form of capital punishment,

the Fourth Circuit's reasoning is

fundamentally flawed because it presumed

all forms of electrocutions to be per se

constitutional in every case. But, even

if electrocution is a constitutionally

permissible mode of capital punishment,

°(...continued)

claim in Count II that specifically

refers to Virginia's electric chair and

the manner in which electrocutions are

carried out in Virginia, Poyner

respectfully requests the opportunity to

amend Count II to state such a clain.

Under ordinary procedures, the District

Court would have considered such an

amendment under Fed.R.Civ.P. 15

(amendments granted liberally) during its

deliberations on the motion to dismiss

pending below.

-31-

not every form of electrocution is

automatically constitutional.*® Stated

another way, if all forms of

electrocution were presumed

constitutional and if the Director of

Corrections decided to execute prisoners

by hooking them up to car batteries and

electrocuting them over a span of hours

or days, no court would be entitled to

review evidence of this torture method.

The irony is that Poyner has alleged a

far more painful torture, but he has not

been allowed his day in court to prove

it.

Yet, the Fourth Circuit's order has

laid down a per se rule, without taking

"Likewise, though the death penalty

has been consistently ruled

constitutional, not every method of

inflicting capital punishment is per se

constitutional.

-32-

any evidence, that no federal court can

review a claim pertaining to Virginia's

electric chair.” In essence, that

Court is deferring to the Department of

Corrections.

Because Count II raises a claim

regarding Virginia's chair, cases

Supporting the proposition that

electrocution is not per se cruel and

unusual do not apply. The holdings in

Kemmler and its progeny do not prevent an

action from proceeding where the claim

x. several cases, courts have

considered challenges and permitted

evidence related to a specific electric

chair, as opposed to electrocution per

se. See, Thomas vy. Jones, 742 F. Supp.

5998 (S.D. Ala. 1990); Ritter v. Smith,

568 F. Supp. 1499, 1562 (S.D. Ala. 1983)

aff'd in relevant part, rev'd in part on

other grounds, 726 F.2d 1505, 1519 (11th

Cir. 1984), cert. denied, 469 U.S. 869

(1984); Buenoano yv. Dugger, Slip Op. No.

90-473-CIV-ORL-19, 1990 WL 119637 (M.D.

Fla. 1990). [a 2S(t) - }.

-33-+-

relates to the application of electricity

in a particular fashion.

2. This Court Should Also Reverse

The Fourth Circuit's Summary

Dismissal Because The 100-Year-

Old Precedent Is No Longer

Legally Or Factually

Supportable.

Because of the sudden and unexpected

dismissal of his case, Poyner was unable

to present his arguments to disprove the

100-year-old factual premise of In re

Kemmler, 136 U.S. 436 (1890), upon which

nearly every case cited by the Fourth

Circuit panel was based.

Execution by electrocution was

examined by the New York state courts in

People ex rel. Kemmler v. Durston, 119

N.Y. 569 (1890), and reviewed by this

Court in Kemmler before any such

executions were actually conducted in the

United States. Thus, any evidence

-34-

presented to the New York court on the

effects of electrocution was necessarily

speculative. In its January 19, 1993

Order, the Fourth Circuit cited numerous

federal and Virginia decisions for the

proposition that execution by

electrocution is constitutional and does

not violate the Eighth Amendment's

prohibition against cruel and unusual

punishment. However, every case cited in

that Order can be categorized in one of

two ways: (i) decisions that cite no

authority for upholding the

constitutionality of electrocution," or

* , 938 F.2d 536, 542

Jones _v. Whitley

(Sth Cir.), cert. denied, U.S. » £23

S. Ct. 8 (1991); Lindsey v. Smith, 820

F.2d 1137, 1155 (llth Cir. 1987), cert.

denied, 489 U.S. 1059 (1989); Watson v.

Blackburn, 756 F.2d 1055, 1058 (Sth Cir.

1985), cert. denied, 476 U.S. 1153

(1986); Johnson v. Kemp, 759 F.2d 1503,

(continued...)

-35-

(ii) decisions that rely on Kemmler, or

on other decisions which, in turn, rely

on Kemmler.** In no case did’ a court

4(,...continued)

1510 (llth Cir. 1985), aff'd, 781 F.2d

1482 (llth Cir. 1986).

In Lindsey, the Court held the

appellant's claim that death by

electrocution is cruel and unusual

punishment was precluded by Johnson v.

Kemp, 781 F.2d 1570 (11th Cir. 1985) (per

curiam). We have searched that opinion

for any mention of electrocution. It is

assumed the Lindsey court miscited the

opinion of Johnson v. Kemp, 759 F.2d 1503

(1985), cited just above, in which the

contention that death by electrocution

violated the Eighth Amendment was

dismissed as frivolous without authority.

‘*McCleskey v. Kemp, 481 U.S. 279,

299 (1987) (dictum); Rummel v. Estelle,

445 U.S. 263, 288 (1980) (Powell, J.,

dissenting); Ingraham v. Wright, 430 U.S.

651, 667 (1977); Estelle v. Gamble, 429

U.S. 97, 102 (1976) (Does not discuss

death by electrocution, but states that

punishments are cruel when they involve

torture or a lingering death); State ex

rel Francis v. Resweber, 329 U.S. 459,

463 n.4 (1947); Lowenfield v. Phelps, 817

F.2d 285, 298 (5th Cir. 1987), aff'd, 484

(continued...)

-36-

consider modern medical evidence of the

*(...continued)

U.S. 231 (1988) (incorporating the

district court's opinion at 671 F. Supp.

423 (E.D. La. 1987)); Wilson v. Butler,

813 F.2d 664, 678 (5th Cir. 1987), cert.

denied, 484 U.S. 1079 (1988); Porter v.

Wainwright, 805 F.2d 930, 943 n.15 (11th

Cir. 1986), cert. denied, 482 U.S. 918

(1987); Funchess v. Wainwright, 788 F.2d

1443, 1446 (llth Cir.), cert. denied, 475

U.S. 1133 (1986); Sullivan v. Dugger, 721

F.2d 719, 720 (11th Cir. 1983); Corn v.

Zant, 708 F.2d 549, 563 (llth Cir. 1983),

cert. denied, 467 U.S. 1220 (1984);

Wai i , 578 F.2d 582,

616 (Sth Cir. 1978), cert. denied, 440

U.S. 976 (1979); Ralph v. Warden, 438

F.2d 786, 789 (4th Cir. 1970), cert.

denied, 408 U.S. 942 (1972) (dictum) ;

, 404 F.2d 571, 577 (8th

Cir. 1968); Stockton v. Commonwealth, 402

S.E.2d 196 (Va.), cert. denied, U.S.

__, 112 S. Ct. 280 (1991); Hoke v.

Commonwealth, 377 S.E.2d 595 (Va. » Sart.

denied, 491 U.S. 910 (1989); |e v.

Commonwealth, 362 S.E.2d 650 (Va. 1987),

cert. denied, 485 U.S. 971 (1988); Beaver

v. Commonwealth, 352 S.E.2d 342 (Va.),

cert. denied, 483 U.S. 1033 (1987);

Stockton v. Commonwealth, 314 S.E.2d 371

(Va.), cert. denied, 469 U.S. 873 (1984);

, 271 S.E.2da 123

(Va. 1980); Hart v. Commonwealth, 109

S.E. 582 (Va. 1921).

-37<

physiological effects of intentional

electrocution.

The Supreme Court of Virginia first

reviewed the constitutionality of

execution by electrocution in Hart v.

Commonwealth, 109 S.E. 582 (Va. 1921),

which relied on the holding in Kemmler as

the foundation of its decision. It is

noteworthy that in Hart, the Court

supported its method of reviewing Eighth

Amendment challenges to Virginia statutes

by citing to Aldridge's Case, 2 Va. Cas.

447, 449, 450 (1824), in which the

Virginia Court had ruled that it is not

cruel and unusual punishment to sentence

a “free person of color" convicted of

grand larceny to be sold into slavery,

banished from the United States, and

whipped 39 times. Hart, 109 S.E. at 587.

-38-

This Court should not adhere blindly and

uncritically to these outmoded

precedents. In light of modern medical

and scientific evidence, Kemmler is no

longer a viable foundation for the

proposition that death by electrocution

is not cruel and unusual punishment.

In Kemmler, the New York county

court reviewed evidence presented to it

and ruled that it did not overcome the

presumption of the constitutionality of

the legislation under the New York State

Constitution (the Eighth Amendment not

yet being considered applicable to the

states) because the proof did not

demonstrate “beyond doubt" that death by

electrocution was cruel and unusual.

Kemmler, 136 U.S. at 442. The standard

of proof required by the court for this

-39°-

first challenge to electrocution,

therefore, was the extraordinarily high

"beyond doubt" standard, which would not

apply to the § 1983 action at issue here.

The New York State Supreme Court and

Court of Appeals affirmed the ruling of

the county court, but on the grounds that

the courts were not competent to second-

guess the factual findings of the

legislature with respect to the

constitutionality of legislation.»

“The New York Supreme Court stated

that "there was nothing in the

constitution of the government or in the

nature of things giving any color to the

proposition that, upon a mere question of

fact involved in legislation, the

judgment of the court is superior to that

of the legislature itself, nor was there

any authority for the proposition that in

respect to such questions, relating

either to the manner or the matter of

legislation, the decision of the

legislature could be reviewed by the

court." Kemmler, 136 U.S. at 442-43. It

(continued...)

-40-

This Court affirmed the decision of the

New York Court of Appeals on the grounds

that, because the New York legislature

had determined that electrocution did not

inflict cruel and unusual punishment and

the New York courts had sustained that

(...continued) |

held that the presumption that the

legislature had ascertained the facts

necessary to determine constitutionality

"was conclusive upon the court," noting

that it agreed that the evidence

presented did not meet the standard of

proof that would be required to overcome

that presumption. Id.

The New York Court of Appeals

affirmed the decision of its Supreme

Court on similar grounds, holding that

"(ijf it cannot be made to appear that a

law is in conflict with the constitution,

by argument deduced from the language of

the law itself or from matters of which a

court can take judicial notice, then the

act must stand. The testimony of an

expert or other witnesses is not

admissible to show that in carrying out a

law enacted by the legislature some

provision of the constitution may

possibly be violated." Id. at 443.

? -41-

determination, New York had not abridged

Kemmler's privileges or immunities, nor

denied him due process of law. Id. at

449.

Since this Court's ruling in

Kemmler, the federal courts and numerous

states courts have cited that decision

for the proposition that death by

electrocution is not cruel and unusual.

Although the law, scientific knowledge

and society's sensibilities have

developed and evolved considerably in the

last one hundred years, casting serious

doubt on the basic legal and scientific

underpinnings of Kemmler, the decision

has inexplicably endured as the basis for

courts all over the land to uphold

electrocution, regardless of the

particular method, as a constitutional

-42-

means of execution. Modern medical and

scientific evidence proves that Kemmler

is no longer a viable foundation for the

proposition that death by electrocution

can never be cruel and unusual

punishment.

The precedential value of Kemmler

has eroded for several reasons. First,

courts no longer defer to state

legislatures in the way the New York

state courts and United States Supreme

Court deferred to the New York

legislature in Kemmler. The Fourth

Circuit, in Ralph v. Warden, Maryland

Penitentiary, 438 F.2d 786 (4th Cir.

1970), cert. denied, 408 U.S. 942 (1972),

upheld the authority of the federal

courts to review a state legislature's

decision generally, and specifically to

-43-+

review a legislature's enactments

regarding criminal punishment. In Ralph,

the State of Maryland argued that capital

punishment was a legislative decision

with which the judiciary should not

interfere. The Fourth Circuit rejected

the State's argument, noting: "The fact

that a Maryland statute authorizes

capital punishment . . . does not

conclusively establish the punishment's

constitutionality, for the Eighth

Amendment is a limitation on both

legislative and judicial action." Id. at

788-89 (citing Robinson v. California,

370 U.S. 660 (1962)).

Second, to the extent that the New

York courts were willing to consider

evidence on the issue, Kemmler would have

been required to prove "beyond doubt"

-44-

that death by electrocution was cruel and

unusual in order to obtain relief.

Kemmler, 136 U.S. at 442. However, in

today's jurisprudence, courts apply a

preponderance of the evidence standard

for establishing an Eighth Amendment

violation.” The constitutionality of

execution by electrocution must be

examined using a preponderance of the

evidence standard.

Finally, scientific and medical

knowledge and technology have made great

strides Since 1890. This Court has

recognized that the Eighth Amendment is

not a static concept but "must draw its

meaning from the evolving standards of

See Blake v. Hall, 668 F

7 : : -2d 52, 57-

(lst Cir. 1981), cert. denied, 456

*S. 983 (1982); Martin v. Foti, 561 F

Supy. 252, 257 (E.D.. La. 1983).

-45-

decency that mark the progress of a

maturing society." Trop v. Dulles, 356

U.S. 86, 101 (1958); Ralph v. Warden, 438

F.2d 786, 790-91 (4th Cir. 1971).

Furthermore, it has recognized that what

is cruel and unusual "is not fastened to

the obsolete but may acquire meaning as

public opinion becomes enlightened by a

humane justice." e v. Georgia, 428

U.S. 153, 171 (1976) (quoting Weems v.

U.S., 217 U.S. 349, 378 (1910)). In

determining whether public opinion has

changed, courts are not to impose their

own "subjective judgment" but "look to

objective indicia that reflect the public

attitude toward a given sanction."

Greag, 428 U.S. at 173.

By consulting with experts in the

advanced and progressing fields of

-46-

medicine and science, and through the

discovery requests pursued in the course

of his underlying litigation in the

District Court, as well as by reviewing

the changes other states are making with

respect to capital punishment, Poyner has

attempted to develop such "objective

indicia" so that a modern judge, by

examining modern technological evidence

and applying modern legal standards, may

reconsider the long-standing assumption

that electrocution is not cruel and

unusual. Poyner is trying to bring

electrocution, and scrutiny thereof, into

the twentieth century and into step with

modern medical science and the "evolving

standards of decency."

This Court in Brown v. Board of

Education, 347 U.S. 483 (1954),

-47-

demonstrated that courts can, and often

should, re-evaluate ancient precedents

like Kemmler. In Brown, this Court

refused to bind the nation and the

federal judiciary to the outdated finding

of Plessy v. Ferguson, 163 U.S. 537

(1896), that separate facilities for

blacks and whites could be equal and were

therefore constitutional. Instead the

Court reexamined the issue of public

school segregation in the context of

contemporary circumstances and new

revelations in the fields of sociology

and psychology, stating:

In approaching this problem, we

cannot turn the clock back to

1868 when the Amendment was

adopted, or even to 1896 when

Plessy v. Ferguson was written.

We must consider public

education in the light of its

full development and its

present place in American life

throughout the Nation. Only in

-48-

;

i temeteesion ts pe

schools deprives these

Plaintiffs of the equal

protection of the laws.

Brown, 347 U.S. at 492-93. The Court

looked to the psychological and

sociological studies of Kenneth Clark and

others, and held that "([tjo separate

(black children} from others of similar

age and qualifications solely because of

their race generates a feeling of

inferiority as to their status in the

community that may affect their hearts

and minds in a way unlikely ever to be

undone." Id. at 494 and n.ll. This

Court recognized that "(w)hatever may

have been the extent of psychological

Knowledge at the time of Plessy v.

Ferguson, this finding is amply supported

by modern authority." Id. In Furman v

-49-

Georgia, 498 U.S. 238, 285 (1972), the

Court acknowledged the necessity to

revisit timeworn assumptions when it

stated that “past assumptions .. . are

not sufficient to limit the scope of an

examination of {the death penalty]

today."

Poyner's Complaint in the District

Court and Petition for writ of certiorari

filed here, asks this Court to follow the

path it took in Brown v. Board of

Education. It asks the Court to

reexamine the constitutionality of

execution by electrocution in light of

modern medicine and science and to free

itself of the constraints imposed by

findings of fact made over one hundred

years ago when our understanding of the

human central nervous system, the brain,

-50-

and che properties of electricity were

primitive.

The District Court below, by

examining modern technological evidence

and applying today's legal standards, was

prepared to reconsider the long-standing

and obsolete assumption that

electrocution is immune from

constitutional review, but the Fourth

Circuit extinguished the District Court's

opportunity, ruling without allowing for

the presentation of contrary evidence.

Nevertheless, the constitutionality of

electrocution is not, and cannot be, a

closed debate given that the first, last,

and only court to consider evidence of

the effects of electrocution did so in

the 19th century. Moreover, the

Commonwealth of Virginia's recent changes

-51-

in its appliances and procedures dictate

at least a hearing in some court to

review the effects of those changes.

With the help of knowledgeable

experts, Poyner is prepared to prove what

modern science now knows about

electrocution. This knowledge includes,

for example, the excruciating pain

suffered by the inmate as he actually

burns and cooks during the electrocution

process. In 1890, before the first

execution by electrocution, the "experts"

were unaware of this phenomenon. It was

also presumed that the inmate was

instantly unconscious as the electricity

was applied, but Poyner's experts have

exposed the fallacy of this assumption.

Our understanding of electricity was in

its infancy in late 19th century, and

-52-

medical science has advanced

exponentially over 100 years. The time

has come to analyze the constitutionality

of Virginia's electric chair using this

modern body of knowledge.

On February 11, 1993, the Circuit

Court for Loudoun County agreed with

Poyner's position and held that a

Virginia court ought to hear evidence on

this very issue:

[Ljooking at all the Virginia cases

that were cited to me... there's

just, for some reason, some sort of

a blind adherence to this rule that

came up from the decision of the

U.S. Supreme Court back in 1890,

that it's not cruel and unusual

punishment for execution by

electrocution; and that that

decision was made without any real

findings of fact, without any real

factual basis to support it.

And it just seems to me that we are

a country, we pride ourselves in our

Constitution, both our U.S. Consti-

tution, our State's Constitution,

Virginia's Constitution, as being a

-53-

viable working document that is

supposed to work with society as

society's attitudes change over

periods of time.

And certainly science and technology

has advanced an awful lot since

1890. And I feel somewhere a Court

has got to hear the evidence of what

the state of the art is now on the

effect of electricity on the human

body during the course of execution

by electrocution in Virginia.

Transcript, Commonwealth v. White,

Circuit Court for Loudoun County, Crim.

No. 8129 (February 11, 1993), at 4.

(A82-A91). Thus, a Virginia court has

now ruled that an evidentiary hearing is

necessary and appropriate to determine

whether execution by electrocution in

Virginia violates the state and federal

constitutional prohibitions on cruel and

unusual punishments.

Kemmler is the decision on which all

cases upholding electrocution as a

-54-

constitutionally sound means of execution

rely. If that decision is determined to

be flawed based on outdated factual

determinations or legal principles, then

all of its progeny must likewise fall.

Poyner should be entitled to an

evidentiary hearing to present evidence

that the factual and legal bases

supporting the Kemmler decision are

outdated.

-55-

PRAYER FOR RELIEF

For the reasons stated, Petitioner

respectfully requests that the Petition

for Writ of Certiorari be granted.

Respectfully submitted,

Alexander H. Slaughter

Counsel of Record

Dorothy C. Young

Shannon E. Sinclair

McGuire, Woods, Battle & Boothe

One James Center

901 E. Cary Street

Richmond, Virginia 23219

Lewis F. Powell, III

Harry M. Johnson, III

Sean P. McMullen

Hunton & Williams

Riverfront Plaza, East Tower

951 E. Byrd Street

Richmond, Virginia 23219

William H. Wright, Jr.

719 West 33rd Street

Richmond, Virginia 23225

Counsel for Petitioner, Syvasky L. Poyner

-56-

CERTIFICATE OF SERVICE

I, Alexander H. Slaughter, hereby certify

that I caused three (3) copies of the

foregoing Petition for Writ of Certiorari

to be delivered by hand on this 11th day

of March, 1993 to John H. McLees,

Esquire, Assistant Attorney General,

Office of the Attorney General, 101 North

8th Street, Richmond, Virginia 23219,

counsel of record for appellant below.

MMiyuubry W, Yray hLir

Alexander H. Sldughfer

Counsel of Record

-57-

APPENDIX

TABLE OF CONTENTS FOR APPENDIX

Poyner v. Murray, No. 92-CV-815

(E.D. Va. filed Dec. 10, 1992) . Al —- A55

Order and Memorandum of District

Court Granting Poyner's

Discovery Motion (January 19,

>) a ae ae a a a as | | moe. |

Defendants' Notice of Appeal of

District Court's Order Granting

Poyner's Discovery Motion

(January 19, 1993) ..... . A67 — A68

Fourth Circuit's Order Dismissing

Poyner's § 1983 Lawsuit (January

Bee SPPeP ec eo eee ec eo ew ew ow o SS = ATI

Fourth Circuit's Mandate to

Memeresee Game . esc cceccewecee « AM

Fourth Circuit's Order Denying

Poyner's Motion for Rehearing . A79 - A81l

, Circuit Court

for Loudoun County, Crim. No. 8129,

Excerpt from Hearing (February

BS, 2993) «© «© © © © © © © 0 6 6 ABZ — ADI

FILED 12/10/92

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

SYVASKY L. POYNER, on behalf

of himself and all others

Similarly situated,

Plaintiffs,

CIVIL

ACTION

NO. 3:92

CV815

Vv.

)

EDWARD W. MURRAY, Director, )

Virginia Department of )

Corrections, )

Serve On: )

Edward W. Murray, Director )

Virginia Department of )

Corrections )

6900 Atmore Road )

Richmond, Virginia 23225; )

)

ELLIS B. WRIGHT, JR.,. Warden, )

Greensville Correctional )

Center, )

Serve On: )

Ellis B. Wright, Jr., Warden)

Greensville Correctional )

Center )

901 Corrections Way )

Jarratt, Virginia 22387; )

)

| and JOHN DOE, Executioner,

Defendants.

-Al-

ee id

COMPLAINT

Syvasky L. Poyner, on behalf of himself

and all others similarly situated, by

counsel, for his Complaint seeking

permanent injunctive and declaratory

relief against Edward W. Murray, Director

of Virginia Department of Corrections;

Ellis B. Wright, Jr., Warden, Greensville

Correctional Center; and John Doe,

Executioner, states as follows:

I. PRELIMINARY STATEMENT

1. This is a class action filed by

plaintiff, on behalf of himself and all

other persons similarly situated both now

and in the future, pursuant to 42 U.S.C.

§ 1983, seeking permanent injunctive and

declaratory relief with respect to the

unconstitutional procedure and means

utilized by the defendants and prescribed

-A2-

by the law of the Commonwealth for

executing prisoners in Virginia.

2. Plaintiff in this action seeks

to enjoin the deprivation by defendants,

under the color of law, of rights of

plaintiff and all other persons similarly

situated protected by the Eighth and

Fourteenth Amendments to the Constitution

of the United States, and petitions the

Court .for an order declaring

unconstitutional acts of defendants and

Va. Code § 53.1-233 establishing

electrocution as the means of carrying

out capital punishment in the

Commonwealth.

Il. JURISDICTION AND VENUE

3. This Court has jurisdiction of

this civil action under both:

(a) 28 U.S.C. § 1331, in that this

action arises under the United States

-A3-

Constitution, particularly the provisions

of the Eight and Fourteenth Amendments;

and

(b) 28 U.S.C. § 1343(3), in that

this is an action brought to redress

deprivations, under color of state law,

of rights, privileges and immunities

secured to the plaintiff and similarly

situated persons by the Constitution of

the United States of America.

4. Venue is proper in this Court

pursuant to 28 U.S.C. § 1391 because the

claims arose in this district in that

executions by electrocution are carried

out at the Greensville Correctional

Center in Greensville, Virginia.

III. PARTIES

5. Plaintiff Syvasky L. Poyner is

an inmate .currently incarcerated at the

Mecklenberg Correctional Center in

-A4-

Boydton, Virginia. He is subject to five

death sentences imposed by three circuit

courts of the State of Virginia. No date

has been fixed for his execution.

However, pursuant to Va. Code § 53.1-232,

his date of execution could be set at any

time.

6. At all times relevant to this

suit, defendant Edward WwW. Murray has been

the Director of the Virginia Department

of Corrections. He has acted and will

act in such capacity as the agent,

servant, and employee of the Commonwealth

of Virginia in all actions he has taken

and will take in deprivation of

plaintiff's constitutional rights. He is

sued individually and in his official ==

Capacity.

7. At all times relevant to this

suit, defendant Ellis B. Wright, Jr., has

-A5-

been the Warden of Greensville

Correctional Center. He has acted and

will act in such capacity as the agent,

servant, and employee of the Commonwealth

of Virginia in all actions he has taken

and will take in deprivation of

plaintiff's constitutional rights. He is

sued individually and in his official

capacity. ‘

8. At all times relevant to this

suit, defendant John Doe, an Executioner

whose identity is not known to plaintiff,

has been an employee of the Department of

Corrections of Virginia. He has acted

and will act in such capacity as the

agent, servant, and employee of the

Commonwealth of Virginia in all actions

he has taken and will take in deprivation

of plaintiff's constitutional rights. He

-~A6-

is sued individually and in his official

capacity.

IV. CLASS ACTION

9. Plaintiff herein brings this

action on behalf of himself and all other

persons similarly situated, pursuant to

Rule 23 of the Federal Rules of Civil

Procefure. Plaintiff represents the

Class of all persons who have been or

will be sentenced to die in Virginia's

electric chair, currently located at the

Greensville Correctional Center in

Greensville, Virginia.

10. Joinder of all class members is

impracticable because the proposed class

is potentially too numerous; in addition,

the class encompasses unknown future, as

weil as known present, prisoners facing

execution by electrocution. Although the

class consists of an indefinite and

-A7~

uncertain number of members, identifying

members is practicable because as death

sentences are imposed, the identity of

new class members will become known.

11. The allegations set out herein

present questions of law and fact which

are common to the class.

12. Plaintiff Poyner has standing

to challenge Virginia's method of

execution. His claim is typical of those

of the unnamed members of the class.

13. Plaintiff Poyner has as much at

stake in the outcome of this case as the

unnamed members. He is represented by

the law firms of Hunton & Williams and

McGuire, Woods, Battle & Boothe. Poyner

thus can adequately represent the

interests of the class.

14. Since plaintiff seeks

injunctive and declaratory relief against

-A8-

the unconstitutional practices of the

defendants in executing prisoners

sentenced to death in Virginia by

electrocution, class echttiousion is

proper pursuant to Rule 23 of the Federal

Rules of Civil Procedure.

V. FACTUAL ALLEGATIONS

Count I

15. The Commonwealth of Virginia

uses electrocution as its method of

execution. Electrocution involves

passing electrical current through the

human body until the condemned person is

dead. Electrocution was heralded as

providing an instantaneous and hence

humane and painless death when invented

in the late nineteenth century, but

modern medical and scientific evidence

demonstrates that it provides neither.

Execution by electrocution results in the

-A9-

wanton and unnecessary infliction of

pain: death by electrocution is

tantamount to being burned or cooked

alive.

16. The amount of electrical

current (measured in amperes or amps)

applied to the condemned person depends

on the amount of voltage generated and

the resistance (measured in ohms) offered

by his body. This follows from Ohm's law

that voltage equals current multiplied by

resistance, a corollary of which is that

current equals voltage divided by

resistance.

17. In general, if the voltage

applied to a resistor is too great, the

latter will burn out or explode.

18. The objective of the

Commonwealth in electrocuting the

condemned person is to kill him without

-A10-

causing his body to explode and without

allowing the witnesses to see indicia of

suffering on his part.

19. The defendants and the

Commonwealth strap the condemned person

into the chair at the aris, the trunk,

and the legs. A mask is placed over his

face so that the witnesses will not see

the effects of the current reflected upon

it. Moreover, the Commonwealth equips

him with a diaper to prevent the

witnesses from becoming aware of the

effects of the electrical charge on his

bladder and bowels.

20. The defendants and the

Commonwealth apply one electrode to the

condemned person's head, which has been

Shaved. Between the head and the

electrode, the defendants and the

Commonwealth place a sponge soaked in a

-Ali-

briny solution. The electrode is to pass

current against the scalp of the subject,

the sponge is to secure the contact and

theoretically to alleviate burning of the

scalp, and the brine is to improve the

conductivity of the sponge.

21. A second electrode (with brine-

soaked sponge) is placed on one of the

subject's legs.

22. The defendants and the

Commonwealth must recognize that the

continuous and repeated application of

electricity to a conscious human body is

extremely painful, and that to apply

electricity in such a manner

intentionally would constitute cruel and

unusual punishment within the meaning of

the Eighth Amendment.

23. Therefore, the avowed objective

of the defendants and the Commonwealth is

-Al2-

to pass sufficient current through the

body and brain of the condemned person to

render him brain dead or at least

instantaneously unconscious without

unduly disfiguring the body. ‘

24. However, no one knows ~

amount of voltage needed to render the

condemned person instantaneously

unconscious, and the law of the

Commonwealth leaves it up to the Director

or his designee to determine how much

voltage to use. It provides him with no

guidelines in this respect.

25. No testing is done to determine

the resistance of the body of the person

to be electrocuted. Hence, the Director

or his designee must guess at the amount

of voltage to apply to the condemned

person.

-Al3-

26. The human skull is a very poor

conductor of electricity. Human skin is

also a poor conductor, but sweat on the

outside of the skin is an excellent

conductor, given that it is essentially

salty water.

27. Most, if not all persons

strapped into the electric chair awaiting

execution, sweat.

28. Electrical current seeks the

path of least resistance. Therefore, a

far greater portion of electrical current

passes along the prisoner's skin than

through his skull, body and brain as it

travels to the electrode on his leg.

29. Hence, in spite of the voltage

applied, relatively little current goes

through the prisoner's brain.

30. The effect is to burn the

condemned person's skin at extreme

~A1l4-

temperatures while he is awake and

conscious for an indeterminate period.

Copies of photographs of the body of

Robert Wayne Williams, executed in

Louisiana, attached hereto as Exhibit 1,

provide some understanding of the burns

that can be inflicted by the electric

chair. These photographs are still filed

with the Court as exhibits in Bassette v.

Commonwealth of Virginia, et al., Civil

No. 3:92CV11.

31. The heat generated by the

passage of current across the body

eventually brings the blood to a boil and

results in the brain being cooked.

32. The prisoner ultimately dies

from asphyxia and cardiac arrest.

33. Sufficient current can be

applied to a human being to kill him

instantaneously. However, the amount of

“A1S—-

current would be so great that the body

would be very badly burnt and might well

explode.

34. The Director or his designee

therefore essentially guesses at the

voltage that should be applied to kill

the condemned person without creating a

mess. Generally, the Director or his

designee errs on the side of avoiding the

latter.

35. The pain experienced by the

condemned person is evidenced by:

(a) “third-degree burns to the

flesh;

(b) drooling and vomiting;

(ad) convulsions;

(e) grimaces and dilated pupils.

36. The painful effects of

electrocution described above are

-A16-

concealed from the spectators by the

mask, diaper and restraints on the

prisoner.

37. Because the nervous and motor

systems of the body are separate, the

muscles can be rendered immobile while

the nervous system retains its ability to

electricity, the condemned person's

nervous system and brain remain

relatively intact, allowing him to feel

pain. His muscles, however, are fully

contracted by the electrical shock. The

involuntary contraction of the condemned

person's muscles itself causes intense

pain. After he lurches forward with the

initial jolt of electricity (a phenomenon

almost invariably noted by witnesses), he

cannot move but can still feel the

indescribable pain inflicted by the

-Al7-

electrical current traveling over and

through his body.

WHEREFORE, plaintiff on behalf of

himself and the class prays that the

Court: (1) declare Va. Code

Section 53.1-233 and the actions of the

defendants unconstitutional in violation

of the Eighth and Fourteenth Amendments'

prohibition against cruel and unusual

punishment; and (2) enjoin the defendants

from using electrocution as a method of

carrying out death sentences.

Count If

38. The plaintiff alleges

paragraphs 1 through 37 of Count I as it

set out fully herein.

39. The defendants and the

Commonwealth are deliberately indifferent

to the fact that they are torturing the

Commonwealth's condemned prisoners, as

-~A18-

they are aware or must be deemed to be

aware of the fdcts set forth herein and

have not even attempted to alleviate the

resulting problems.

40. The technology of executing

people by administering jolts of

electricity externally to the head is

antiquated. The defendants and the

Commonwealth are aware of a large number

of botched executions, both within and

without Virginia.

41. The defendants and the

Commonwealth are aware that the use of

Virginia's chair has resulted in several

gruesome executions. Flame and smoke

erupted from the head of Frank J. Coppola

when he was executed. More recently the

executions of Wilbert Lee Evans and

Derick L. Peterson were botched. Both

men died prolonged, lingering, agonizing

-A19-

deaths, as observed by eyewitnesses and

reflected by the physical evidence.

Blood and other bodily fluids gushed out

from under Evans' mask during his

execution, and his autopsy revealed burns

not only at the points of the electrode

contact, but on other parts of his body

as well. Peterson was not killed by the

first jolt of electricity, and witnesses

observed him wheezing and moaning. It

took the defendants and the Commonwealth

over twelve minutes to execute Peterson.

42. In response to the botched

execution of Peterson in August 1991, the

defendants and the Commonwealth decided

that in all future executions they would

administer two separate two-minute series

of electrical jolts. The defendants and

the Commonwealth adopted this procedure

because they recognized that the first

-A20-

jolt of electricity often does not kill a

condemned person and that death by

electrocution is not immediate.

43. Moreover, the defendants and

the Commonwealth do not know and cannot

demonstrate that the condemned person is

even rendered unconscious by the first

jolt of electricity. Rather, modern

medical and scientific evidence

establishes that the condemned person is

conscious and able to feel pain during

the application of electrical current to

his body.

44. Virginia's operating and

testing procedures for its equipment are

primitive. The operating procedures

promulgated by the Department of

Corrections provide that the brine

Solution in which the sponges are soaked

shall consist of five gallons of water

-A21-

and “approximately three (3) pounds of

table salt." Commonwealth of Virginia

Department of Corrections, Greensville

Correctional Center, Institute Operating

Procedures, IOP No. 426.1-7.4 April 1,

1991; see Exhibit 2. In order to

determine whether the brine is

sufficiently saline, the defendants and

the Commonwealth place "a fresh egg in

its shell in the solution. If the egg

will float, the solution is correct."

IOP No. 426.1-7.4, see Exhibit 2. The

type of egg is presumably left to the

discretion of the individual doing the

testing. The testing of the saline

solution could be done with a relatively

cheap conductivity meter, which would

presumably be more accurate than the

floating "fresh egg" test.

-A22-

45. The Commonwealth in the past

has failed to provide requested

information on the composition of the

execution teams, and hence, the expertise

of those persons cannot be gauged.

However, a review of the relevant parts

of the Institutional Operating Procedures

(No. 426.1) reveals that no special

expertise is required of its members.

Moreover, the relevant part of the

Institutional Operating Procedures (No.

426.1) does not (a) instruct on the

handling of electrical malfunctions

during the operation of the electric

chair, (b) instruct on the proper

placement of the electrodes, (c) provide

for identification of any condition of

the prisoner which might retard the flow

of electric current or for the

performance of calculations designed to

-A23-

assure that the voltage used is

sufficient to render the subject

unconscious immediately, if that is

possible.

46. The defendants and the

Commonwealth have consistently misled the

public and its legislature respecting the

painful nature of electrocution, the

antiquated technology applied, the

primitive procedures used to test and

administer the machinery, the failure to

use personnel qualified by education or

training to carry off the executions, the

number of botched executions and the

certainty of pain.

WHEREFORE, plaintiff on behalf of

himself and the class prays that the

Court: (1) declare Va. Code § 53.1-233

and the actions of the defendants

unconstitutional in violation of the

-A24-

Eighth and Fourteenth Amendments'

prohibition against cruel and unusual

punishment; and (2) enjoin the defendants ©

from using electrocution as a method of

carrying out death sentences.

SYVASKY L. POYNER

on behalf of himself and

all others similarly

situated

By /s/ Alexander H. Slaughter

Of Counsel

Alexander H. Slaughter

Virginia State Bar No.: 05916

Dorothy C. Young

Virginia State Bar No.: 31155

Shannon E. Sinclair

Virginia State Bar No.: 30588

MCGUIRE, WOODS, BATTLE & BOOTHE

One James Center

Richmond, Virginia 23219

(804) 775-1000

Lewis F. Powell, III

Virginia State Bar No.: 18266

Harry M. Johnson, III

Virginia State Bar No.: 29144

Sean P. McMullen

Virginia State Bar No.: 31478

HUNTON & WILLIAMS

Riverfront Plaza - East Tower

951 E. Byrd Street

-A25-

Richmond, Virginia 23219

(804) 788-8200

-A27-

hte sxuporr

January 6, 1992

Mr. Stuart A. Raphael

Hunton & Williams

Post Office Box 1147

Fairfax, Virginia 22030

Dear Mr. Raphael:

This is in response to your letter of

December 31, 1991, renewing your request

pursuant to the Freedom of Information

Act (FOIA), for photographs, diagrams,

engineering drawing, electrical

schematics and/or blueprints of the death

chamber or electric chair. You further

request the Institutional Operating

Procedures (IOP) on execution. These

records and documents, you contend, are

not exempted by Section 2.1-342(B) (32).

You state that it is difficult to —

conceive how photographs and electrical

schematics of the electric chair itself

would jeopardize the security of the

facility at Greensville. Those

documents, in the hands of a person with

the appropriate knowledge, could be used

to sabotage the operation and lead to a

potential escape. Further, the location

of the electrical conduits could lead to

sabotage by persons within the prison or

on the outside of the facility.

We will continue to object to the release

of schematics, diagrams, etc., of the

Greensville facility under Section 2.1-

-A28-

EXHIBIT 2

342(B) (32). We will, however, enclose

the diagrams and schematics of the

facility at the Virginia State

Penitentiary. Since that facility is no

longer in existence and the electronics

of the unit have now been totally

changed, they now present no security

threat. I note that your original

request #8 requested diagrams, etc., of

the death chamber or electric chair, this

request was read to mean the current

death chamber.

While your letter is aimed at items 8-11

of your November 27, 1991, FOIA inquiry,

you seem to further question the

withholding of IOPs on executions. While

you have not asked for those IOPs in your

most recent correspondence, we have

decided to furnish you with them without

your formal request. We have, however,

redacted certain sections of those

documents pursuant to Section 2.1-

342(A)(3). The reasons for individual

redactions will be explained as to each

particular document.

Institutional Operating Procedure 426

relates to the procedures for carrying

out death sentences. We have made the

following redactions to this document:

426-7.3 - (Last sentence) - Explains

where records of the

inmate will be held.

426-6.2 - Explains security in the

confinement area.

-~A29-

426-6.4(1) - Explains where the

= security team will muster.

(5)(b) - Explains security

procedures for witnesses.

(5) (a) - Explains security

responsibility for.

enforcing instructions.

426-6.7 - Explains where the

institutional records of

condemned will be

maintained.

Institutional Operating Procedure 426.1

relates to the duties and .

responsibilities of the execution team.

We have made the following redactions to

this document:

426.1-7.0 - Explains the make-up and

numbers of the execution

team.

426.1-7.5(1) - Explains the duty and

number of personnel in

relation to the execution.

(2) - Explains the time and

place for muster of

personnel.

(16) - Explains who activates the

cycle on the electric

chair.

You should note that #18 calls for a two

(2) minute cycle. This procedure is

-A30-

being changed to a ninety (90) second

cycle for the next execution.

Institutional Operating Procedure 426.2

relates to the duties and

responsibilities of the death watch

person(s). We have made the following

redactions to this document:

426.2.7.2(2) - Explains the duties

and movement of the

death watch team.

426.2.7.2(4) - Explains certain

duties of the death

watch team.

(9) - Explains movement and

location of inmate.

(12) - Explains the duty

schedule and

personnel

requirements of the

death watch team.

Taken together these three IOPs make up

the procedure for carrying out an

execution. The redactions have been made

pursuant to Section 2.1-342(B)(32). The

number of personnel, their location and

their particular duties relate directly

to security. Providing these facts would

jeopardize the security of the

institution by providing information that

could be used in an escape attempt or to

disrupt the institution. As you know,

six inmates escaped from the death row at

Mecklenburg Correction Center even though

~A31-

they had none of this information. The

Department of Corrections, in keeping

with its responsibility to the citizens

of the Commonwealth, must take every step

possible to prevent a recurrence of that

event.

Institutional Operating Procedures 426,

426.1 and 426.2 existed for the Virginia

State Penitentiary. Those IOPs were

updated when the facility moved to

Greensville but present the same

information. They have not been provided

because of duplication of effort, as the

same paragraphs would be redacted.

I trust this further material satisfies

your request. While we have made every

effort to provide as much information as

possible to you within the parameter of

the FOIA, I am sure you will agree that

the security of the facility is

paramount.

Please feel free to contact me, if I can

be of further assistance.

Sincerely,

/s/ Edward W. Murray

Edward W. Murray

EWM: gcg

-A32-

I.O.P. #426

Page 2

PART IT

PROCEDURES

426-7.0 PROCEDURES

426-7.1 € inement

1. Persons for whom the death

sentence has been

pronounced, shall be

conveyed to the

Greensville Correctional

Center, or to other

confinement facilities by

Police agencies having

jurisdiction of the court

where sentence was handed

down.

2. Upon arrival at the

confinement facilities,

the inmate will be strip-

searched and issued a

complete issue of clothing

allowed in the cell. (See

post orders for clothing

and articles allowed.)

3. Upon completion of the

requirements in 2 above,

the inmate will be

confined in an individual

cell. Only one (1) inmate

may be confined in each

cell.

-A33-

426-6.2

426-6.3

426-6.4

4. The institution's I.D.

Officer will go to place

of confinement, photograph

and fingerprint the inmate

upon instructions from the

Warden, or his designee.

[Redacted].

: ity Within tl sonfi ns

Area

1. [Redacted].

2. [Redacted].

3. [Redacted].

Maintenance of Death Chamber

Re The maintenance of the

Death Chamber and

appliances for the

execution of felons will

be the responsibility of

the Officer-in-Charge of

the Execution Team. (See

I.O.P. #426.1).

2. The general maintenance of

the housing unit will be

coordinated through the

institution maintenance

section.

Training of the Execution Team

1. [Redacted].

2. The Execution Team members

shall be selected from

~A34-

426-6.5

Division of Adult

Institutional Services’

employees.

3 The Warden of Greensville

Correctional Center will

have the responsibility

for making the final

decision.

4. The criteria for selection

of Team members will be

based on job

specification.

S. The training of the

Execution Team shall be

the responsibility of the

Officer-in-Charge of the

Team.

Correspondence and Notification

Requirements

i. Thirty (30) days prior to

the scheduled execution,

the Warden shall prepare

for the Department of

Corrections Director's

Signature, a letter to the

Governor and the Attorney

General of the

Commonwealth informing

them:

a. The location of the

inmate prior to 30

days of the execution

date and a follow-up

-~A35-

letter at 15 days, or

when the inmate is

received at

Greensville.

b. The date set by the

court for the

inmate's execution.

C. The execution will

take place as

scheduled unless

directed otherwise by

a competent Judicial

or Executive

authority.

Four (4) days before the

scheduled execution, the

Warden of Greensville

Correctional Center shall

notify the following

persons of the inmate's

name and number and the

date and time scheduled

for the execution:

a. The Director of the

Department

Corrections.

b. The Deputy Director

of Adult

Institutional

Services.

C. The Regional

Administrator of

Region IV (Eastern).

-A36-

d. The Chief Physician

of the Department of

Corrections.

e. The Manager,

Classification and

Records Unit.

e. The Bureau of Public

Information.

g. The Assistant

Attorney General

assigned to the

Department of

Corrections.

h. The Execution Team.

be The Sheriff,

Greensville County.

3. Superintendent, State

Police.

k. The witnesses

selected for the

execution.

The day before the

execution:

a. The Execution Team

will carry out its

responsibilities and

make an oral report

to the Warden of the

state of readiness.

(See I.0.P. #426.1

-A37-

for details of

preparation.)

b. The Security Staff of

Greensville

Correctional Center

will be briefed on

security requirements

on execution day by

the Chief of Security

and/or Warden.

426-6.6 Requirements on the Day of

Execution

The Warden will be briefed

and he will assign the

Death Watch Team 24 hours

before time set for the

execution. (See I.0.P.

#426.2 for Duties of Death

Watch Tean. )

{Redacted}

stand-by requirement will

begin 12 hours before the

scheduled execution and

remain on stand-by until

dismissed by the Warden,

or his designee.

A representative of the

Virginia State Police will

be located in the Warden's

office, if the

Administration feels there

is a need. The reporting

time and duration of this

-A38-

requirement to be

announced.

Representatives of the

news media shall be

assembled in a pre-

designated location under

the direction of the

Greensville Correctional

Center Public Information

Officer.

The Warden, or his

designee, will receive and

brief the witnesses upon

their arrival at

Greensville Correctional

Center.

a. They are to be

properly identified

to insure that only

authorized persons

witness the execution

and require them to

sign required

documents.

b. {Redacted}.

Cc. Witnesses will be

escorted to the

witness booth by the

Warden, or his

designee, 15 minutes

before the time of

the execution.

d. [Redacted].

-A39-

426-6.7

426-7.1

426-7.2

426-7.3

Records and Reports

1. [Redacted].

2. All log books maintained

on each inmate housed in

the Execution Chamber, or

other location, shall be

turned in to the Warden's

office when there is a

need for the books to be

replaced and/or after the

death sentence has been

carried out.

PART If

ADMINISTRATION

OFFICE OF PRIMARY

RESPONSIBILITY

The Warden of Greensville

Correctional Center shall hold

primary responsibility for

maintaining a permanent Death

Chamber within the confines of

Greensville Correctional Center

and coordinating the execution

of condemned inmates.

SUP ON

This is the first issue of this

Institutional Operating

Procedure.

E CES

-A40-

}

vid

Code of Virginia, Sections

53.1-232 to 53.1-236

426-7.4 REVIEW DATE

This Institutional Operating

sn ai shall be reviewed and

revised accordingly by Octo

1, 1991. spied -_

Ls - . Grizzar

. - Grizzard J. A. Smith, J

o Be P.

Warden Regional

Administrator

6-14-91

Date Date

-~A4l1-

COMMONWEALTH OF VIRGINIA

DEPARTMENT OF CORRECTIONS

GREENSVILLE CORRECTION CENTER

INSTITUTIONAL OPERATING PROCEDURES

IOP NUMBER: 426.1 DATE: April 1, 1991

SUBJECT:

426.1-1.

426.1-2.

426.1-3.

426.1-4.

426.1-5.

PAGE _1. OF _5_ PAGES

Duties and Responsibilities of

the Execution Team

PART I

G OV

PURPOSE

This will prescribe the duties

and responsibilities of the

Execution Team Members in

carrying out the Death

Sentence.

AUTHORITY

Code of Virginia, Section 53.1-

232 to 53.1-236.

EFFECTIVE DATE

April 1, 1991

DISCUSSION

~A42-

, This Operating Procedure

applies to all members of the

Execution Team.

426.1-6.0 DEFINITIONS

None

PART IT

PROCEDURES

426.1-7.0 PROCEDURES

426.1-7.1 COMPOSITION

[Redacted}.

426.1-7.2 TRAINING

426.1-7.3

The Officer-in-Charge and/or

the Assistant Officer-in-Charge

shall conduct a training

session at least once each

month at which time all

appliances and electrica]

circuits will be tested.

The four (4) days before a

scheduled execution, the

Officer-in-Charge and/or his

assistant will assemble the

Execution Team in the Death

Chamber area to prepare and

test all appliances and

equipment for the scheduled

execution.

~A43-

426.1-7.4 The day before a scheduled

execution the following

preparations will be made:

Set up the cooling board

in room provided for same.

Insure that a minimum of

ten (10) sandbags, filled

with sand, are available

in the cooling roon.

Obtain two (2) clean bed

sheets and six (6) clean

hand towels and store in

room with cooling board.

Soak head piece and leg

pieces in clear cold water

for at least three (3)

hours before being removed

and place in brine

solution.

Mix five (5) gallons of

water and approximately

three (3) pounds of table

salt to form brine.

Check the solution by .

placing a fresh egg in its

shell in the solution. If

the egg will float, the

solution is correct.

Insure that 12 non-

cushioned straight back

chairs are placed in the

witness room.

-A44-

Upon completion of the

preparation stage, the

Officer-in-Charge and/or

the Assistant Officer-in-

Charge will make an oral

report to the Warden as to

the state of readiness of

equipment, appliances and

Death Chamber.

426.1-7.5 Prior to, but not more than 24

hours before the day of

execution, the Execution Team

will carry out the following

instructions under the

direction of the Officer-in-

Charge and/or the Assistant

Officer-in-Charge:

[Redacted].

Insure that all equipment

is properly placed.

The Officer-in-Charge

and/or Assistant Officer-

in-Charge will set the

test board on the chair

and test circuitry. The

test board will be left on

the chair upon completion

of first circuitry test.

The two (2) members

assigned to the head and

leg pieces are to remove

Same from the clear water,

-~A45-

squeeze excess water from

them and place the head

and leg pieces in the

brine solution and add

ice, one and a half hours

(1 1/2 hours) prior to the

execution.

Fifteen minutes before the

scheduled execution, the

designee will activate the

telephone. He/she will

call the number where the

Governor is located, get

an assistant assigned by

the Governor on the phone

and keep the line open

until the execution is

over.

The Officer-in-Charge will

retire to the controls

after ascertaining all is

in order for carrying out

the execution.

After the witnesses are

seated, circuitry is

tested by the Assistant

Officer-in-Charge. Upon

completion of the test,

the test board will be

removed and stored in

controls.

The two (2) Team members

assigned to the head and

leg pieces will remove

same from brine, squeeze

-~A46-

10.

11.

12.

13.

14.

out excess liquid and

place on drain board on

orders of the Assistant

Officer-in-Charge.

The Warden, or his

designee, will read the

Court Order to the inmate

and ask if he has any last

words.

The three (3) Team members

assigned the duties of

escorting the condemned

inmate to the chair will

do so upon instructions

from the Assistant

Officer-in-Charge.

The inmate will be

escorted to the chair,

strapped in the chair,

head and leg pieces and

face mask secured by Team

members previously

assigned those duties,

under the direction of the

Assistant Officer-in-

Charge.

When all straps and

appliances are secured,

all members of the Team

will dry their hands and

retire to post where the

safety key is located.

The designee on the phone,

in contact with the

-~A47-

15.

16.

17.

18.

19.

20.

Governor's assistant, will

give the all clear signal

to the Warden possessing

the key for the circuitry.

Upon receipt of the all

clear signal, the key will

be inserted by the Warden,

activate the circuitry and

signal to the Officer-in-

Charge to proceed.

[Redacted].

When the cycle has been

completed, the Officer-in-

Charge will signal to the

Warden who will deactivate

the circuitry and remove

the key.

After the key has been

removed, the Warden will

wait two (2) minutes then

Signal the physician in

attendance.

After the physician

pronounces the inmate

dead, the Warden will

inform the Director that

the sentence has been 5

carried out.

After the physician

pronounces the inmate

dead, the witnesses will

be escorted out by the

Warden, or his designee.

-A48-

21.

23.

The body will be removed

by the Execution Team and

placed on a sheet on the

cooling board. The body

will be covered with the

second sheet and sand bags

placed on thighs, knees

and arms.

The body will be removed

from Greensville

Correctional Center when

instructed to do so by the

Warden. The body will be

transported to the State

Morgue for further

disposition.

The Execution Team, under

the direction of the

Officer-in-Charge, will

store all equipment in the

proper location, secure

the Death Chamber and

report to the Warden's

office for additional

instructions.

PART III

ADMINISTRATION

426.1-8.1 OFFICE OF PRIMARY

RESPONSIBILITY

The Officer-in-Charge and/or

the Assistant Officer-in-Charge

will be responsible to the

Warden of Greensville

-~A49-

426.1-8.2

426.1-8.3

426.1-8.4

s/ E. M. Grizzard

Correctional Center for the

care and maintenance of the

Death Chamber and all

appliances and equipment; the

training of the Execution Team

and carrying out the execution

of the condemned inmate.

SUPERSESSION

This is the first issue of this

Institutional Operating

Procedure.

FERENCE

Code of Virginia, Section 53.1-

232 to 53.1-236.

REVIEW DATE

This Institutional Operating

Procedure shall be reviewed and

revised accordingly by October

1, 1991.

E. M. Grizzard J. A. Smith, Jr.

Warden Regional

Administrator

6-14-91

Date Date

-A50-

COMMONWEALTH OF VIRGINIA

DEPARTMENT OF CORRECTIONS

GREENSVILLE CORRECTION CENTER

INSTITUTIONAL OPERATING PROCEDURES

IOP NUMBER: 426.2 DATE: April 1, 1991

SUBJECT:

426.2-1.0

426.2-2.0

426.2-3.0

426.2-4.0

426.2-5.0

PAGE _1 OF _4_ PAGES

Duties and Responsibilities of

the Death Watch Person(s)

PART I

GENERAL PROVISIONS

POS

This will prescribe the duties

and responsibilities of the

person(s) assigned to the Death

Watch Duties.

AUTHORITY

Code of Virginia, Section 53.1-

232 to 53.1-236

EFFECTIVE DATE

April 1, 1991

DISCUSSION

APPLICABILITY

-A51-

426.2-6.0

426.2-7.0

426.2-7.1

426.2-7.2

This Institutional Operating

Procedure applies to those

members of the Execution Team

designated to perform Death

Watch duties.

NITIONS

None

PART IT

PROCEDURES

EATH WATCH COMPOSITION

[Redacted }

DUTIES D_RES SIBILITIES

1. Report to the Warden 24

hours before the time set

for the execution.

2 [Redacted]

3s Communicate request for

religious counseling,

medical needs, telephone

use, visits, etc. to the

Warden or his designee for

decision.

4. {Redacted}

-~A52-

ll.

12.

Place a clean change of

bed linen (2 sheets and

pillow case), change of

underwear, trousers and

shirt.

Take the last meal menu

request from the inmate

and submit the request to

the Warden or his

designee.

Serve the last meal to the

inmate about four (4)

hours before the scheduled

execution.

Upon completion of the

serving of the meal,

remove the inmate from the

assigned cell and shave

his head with clippers.

{Redacted}

Upon completion of

requirement outlined

above, make an oral report

to the Warden.

One (1) member of the

Death Watch may retire at

this time.

{Redacted }

426.2-7.2 GENERAL DUTIES AND

RESPONSIBILITIES

-AS3-

Re The Death Watch member on

duty will position himself

where he has constant

observation of the inmate.

other person(s), serving of the

last meal, communicating with

the Warden on the last request

of the inmate and supervision

of preparing the inmate for the

25 In the event the inmate 3

execution.

attempts to harm himself,

the Death Watch Member on

duty will alert the 426.2-8.2 SUPERSESSIO

regular officer on duty

and take whatever action

is necessary to correct

This is the first issue of this

Institutional Operating

the situation. Procedure.

= ©

a Prepare and submit a 426.2-8.3 REFERENCES

written report in detail oe eae

to the Warden at the Code of Virginia, Section 53.1-

conclusion of the Death 232 to 53.1-236

Watch mission. 426.2-8.4 REVIEW DATE

4. Contact the Warden or his

designee in any situation

not covered by written or

oral instruction.

This Institutional Operating

Procedure shall be reviewed and

revised accordingly by October

A, A99A

PART III E.M. Grizzard J. A. Smith, Jr.

ADMINISTRATION ees megsens.

Administrator

426.2-8.1 OFFICE OF PRIMARY

RESPONSIBILITY

Date Date

The Death Watch person(s) will

be responsible to the Warden of

Greensville Correctional Center

for the security and protection

of the condemned inmate from

harming himself or harm from

-A54- -~2A55-

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

SYVASKY L. POYNER, on behalf

of himself and all others

Similarly situated,

Plaintiffs,

Case No.

92CV815

Vv.

Virginia Department of

Corrections,

ELLIS B. WRIGHT, JR.,

Warden, Greensville

Correction Center,

)

EDWARD W. MURRAY, Director, )

)

and JOHN DOE, Executioner, )

)

Defendants.

ORDER

For the reasons stated in the

accompanying Memorandum, and deeming it

just and proper so to do, it is Adjudged

and Ordered that the Plaintiff's motion

for expedited discovery and his motion to

compel are hereby GRANTED, except as they

pertain to the request to videotape the

-A56-

execution of Charles Stamper, which

portion of said motion is hereby DENIED.

Let the Clerk send copies of this

Order and the accompanying Memorandum to

all counsel of record.

Ss obert R. Merhige, Jr.

UNITED STATES DISTRICT JUDGE

Date

-A57-

ICT COURT

E UNITED STATES DISTR

FOR — EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

behalf

SYVASKY L. POYNER, on

of himself and all others

similarly situated,

Plaintiffs,

Case No.

* 92CV815

Virginia Department of

Corrections,

ELLIS B. WRIGHT, JR.,

Warden, ;

Greensville Correction

Center,

)

EDWARD W. MURRAY, Director, .

)

and JOHN DOE, Executioner, .

)

Defendants.

MEMORANDUM

This matter is before the Court on

the Plaintiff's motion for expedited

discovery and the Defendant's related

motion for a protective order pending 4

ruling on their motion to dismiss. The

Plaintiff makes three separate and

-A58-

independent discovery requests, all

related to the execution of Charles S.

Stamper, currently scheduled to take place

on January 19, 1993. The parties argued

their respective discovery motions before

this Court on January 15, 1993.

On December 10, 1992, Mr. Poyner, on

behalf of himself and all others similarly

situated, filed a Complaint in this Court

against Edward WwW. Murray, Director,

Virginia Department of Corrections, Ellis

B. Wright, > oe Warden, Greensville

Correctional Center, and John Doe,

Executioner, seeking permanent injunctive

and declarative relief pursuant to 42

U.S.C. § 1983 with respect to the alleged

unconstitutional procedure and means

utilized by the Defendants and prescribed

by the law of the Commonwealth of Virginia

for executing prisoners in Virginia. On

-A59-

December 10, 1992, this Court Ordered the

Defendants to allow a representative of

the Plaintiff to enter the Execution

Chamber of the Greensville Correctional

Center and film the execution of Timothy

Bunch. At that time, this Court also

ruled that the Plaintiff could have a

representative present at the routine

autopsy of Mr. Bunch. Both of these

measures were Ordered for the furtherance

of discovery in this class action now

before this Court. This compelled

discovery was narrowly tailored in an

attempt to avoid interfering with the

state's execution procedures.

The Defendant promptly appealed this

Court's decision to the Fourth Circuit

Court of Appeals, and on December 10,

1992, in In Re Ellis B. Wright, No. 92-

7229 (4th Cir. Dec. 10, 1992), the Fourth

-A60-

Circuit reversed this Court's ruling that

allowed the Plaintiff in this action to

videotape the execution of Timothy Bunch.

Although this Court viewed the Order

allowing the Plaintiff to videotape the

Bunch execution as a discovery procedure

specifically designed to avoid interfering

with the execution, the Fourth Circuit

found that the presence of a video camera

did present an interference and cast grave

doubt on whether this Court had any

jurisdiction to act on that premise.

Additionally, the appellate court Ordered,

subsequent to the death of Timothy Bunch,

all relief requested by the motion of

December 10, 1992, Dismissed as moot.

The subject matter jurisdiction of

this Court has not been challenged by the

parties, and the Court is reasonably

satisfied of its jurisdiction to decide

-A61-

the ultimate issue. There is no dispute

that if this Court has jurisdiction over

the case, this Court has jurisdiction over

disputed discovery. See, e.g., Fed. R.

Civ. P. 37 (a)(1).

The Plaintiff again requests this

Court to compel, inter alia, the

videotaping of the execution of Charles

Stamper. For the reason stated from the

Bench at the hearing on January 15, 1993,

and giving proper deference to the Fourth

Circuit's opinion in In Re Ellis BB.

Wright, supra, this request must be

Denied.

The Plaintiff also requests this

Court to compel the videotaping of a

routine pre-execution testing of the

electric chair at the Greensville

Correctional Center. The Defendant's only

potentially relevant objection to allowing

-~A62-

this discovery is that if done on the same

day as the execution it may collaterally

interfere with the execution preparation

or procedure. This Court finds that it is

not necessary for this test, or its

videotaping, to be performed on the same

day scheduled for an execution.

Therefore, the Defendants shall be

compelled to allow the Plaintiff's

representatives to observe and videotape a

routine preexecution testing of the

electric chair at Greensville Correctional

Center at a mutually agreeable time no

later than twenty (20) days from the date

of this Memorandun.

Finally, the Plaintiff requests that

this Court compel the Defendants to allow

the Plaintiff's representative, Dr. E. B.

Ilgren, an eminent neuropathologist, to

observe the routine autopsy following the

-A63-

execution of Charles Stamper. Further, the

Plaintiff request that Dr. Ilgren be

allowed to collect samples of the executed

inmate's brain tissue after it is removed

and sectioned by the Defendants'

pathologist. The Defendants can not show

how passive observation of a routine

autopsy can in any way interfere with the

scheduled execution. For this reason, the

Plaintiff will be allowed to have his

expert representative present to observe

the autopsy. Similarly, the Plaintiff's

request that Dr. Ilgren be allowed to

conduct one separate and independent test

merely requires Dr. Ilgren to collect

minimal samples from tissue that already

will be removed and sectioned in the

course of the regularly scheduled autopsy.

The Court fails to see how this can

possibly interfere with the Defendant's

-A64-

routine or plans concerning the scheduled

execution.

The Defendants' assert a misplaced

objection that the discovery material

requested by the Plaintiff may not be

dispositive or even admissible in a trial

on the merits. It is well settled that in

order to be discoverable, the information

sought need only appear reasonably

calculated to lead to the discovery of

admissible evidence. Fed. R. Civ. P. 26

(b) (1). The Court must also consider the

limited and unique opportunity for

discovery presented with each scheduled

execution and the potential irreparable

harm of allowing discovery to become

unduly delayed. Accordingly, the

Plaintiff's motion for expedited discovery

and his motions to compel will be granted,

except as they pertain to his request to

~A65-

videotape

Stamper.

the execution of Charles

An appropriate Order shall follow.

1/19/93

Date

/s/ Robert R. Merhige, Jr.

UNITED STATES DISTRICT JUDGE

-A66-

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

SYVASKY L. POYNER, ON

BEHALF OF HIMSELF AND

ALL OTHERS SIMILARLY

SITUATED,

Plaintiffs

Vv. Civil Action No.

92-CV-815

EDWARD W. MURPHY, et al.

Defendants

NOTICE OF APPEAL

Notice is hereby given that

Defendants Edward W. Murray, et al.,

hereby appeal to the United States Court

of Appeals for the Fourth Circuit from the

order entered in this case on January 19,

1993, granting the plaintiffs discovery

with respect to the autopsy of Charles S.

Stamper.

-A67-

Respectfully submitted,

EDWARD W. MURRAY, Director

Virginia Department of

Corrections, et al.,

Defendants herein,

By:__/s/ Mark R. Davis

Counsel

~A68-

FILED: January 19, 1993

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 93-6052

SYVASKY LAFAYETTE POYNER, on behalf of

himself and all others similarly

situated,

Plaintiffs - Appellants,

versus

EDWARD W. MURRAY, Director, Virginia

Department of Corrections, ELLIS B.

WRIGHT, JR., Warden, Greensville

Correctional Center, and JOHN DOE,

Executioner,

Defendants - Appellees.

ORDER

The defendants have appealed from a

part of an order of the district court

entered at 3:00 p.m. January 19, 1993,

granting a discovery request pertaining to

-~A69-

the execution of Charles S. Stamper, who

has been ordered to be executed by

electrocution on January 19, 1993. We are

advised that such executions take place in

Virginia at 11:00 p.m.

The order of the district court

further specifically requires the

defendants to allow Dr. E. B. Ilgren to

observe "the routine autopsy following the

execution of Charles Stamper." The order

further implicitly requires the defendants

to furnish to Dr. lgren tissue samples

from Stamper's brain tissue “after it is

removed and sectioned by the defendants’

pathologist."

In this case of considerable public

interest, the order of the district court

is not any routine discovery order but is,

in fact, an injunction and we treat it as

such. There is no doubt that a refusal to

-A70-

comply with the district court's order of

January 19, 1993 would be punishable by

contempt.

We have examined the papers in the

underlying case of Poyner v. Murray, No.

92-CV815. That case essentially contests

the validity of the Virginia statutes

requiring execution by electrocution as

being invalid in violation of the Eighth

Amendment because electrocution is cruel

and unusual punishment.

This exact question has been decided

adversely to Poyner's position by the

Supreme Court of Virginia in Martin v.

Commonwealth, 271 S.E.2d. 123 (Virginia

1980), a case occurring after Robinson v.

California, 370 U.S. 660 (1962) and Hart

v. Commonwealth, 109 S.E.2d 582 (Virginia

1921) prior to Robinson. The Virginia

Court has refused to reconsider the

-A71-

question in Stockton v. Commonwealth, 402

S.E.2d 196 (Virginia 1991), Hoke v.

Commonwealth, 377 S.E.2d 595 (Virginia

1989), Stockton v. Commonwealth, 314

S.E.2da 371 (Virginia 1984), Townes v.

Commonwealth, 362 S.E.2d 650 (Virginia

1987), and Beaver _v. Commonwealth, 352

S.E.2d 342 (Virginia 1987).

WestLaw indicates at least 105 state

cases in 13 jurisdictions which state or

hold that electrocution is not an

unconstitutional means of execution.

Two circuits, the Fifth and Eleventh,

have held and stated that electrocution is

not a method of execution in violation of

the Eighth amendment, and two other

circuits, the Fourth and Eighth, have

noted in dictum that the Supreme Court

approved of electrocution as a form of

-A72-

execution in In Re: Kemmler, 136 U.S. 436

(2890).

Jones v. Whitley, 938 F.2d 536 (5th

Cir.), cert. denied, 60 U.S.L.W. 3108

(1991)

Lindsey v. Smith, 820 F.2d 1137, 1155

(11th Cir. 1987) cert. denied, 495

U.S. 1059 (1989);

Lowenfield v. Phelps, 817 F.2d 285

(Sth Cir.) cert. granted in part, 483

U.S. 1005 (1987), aff'd, 484 U.S. 231

(1988);

Wilson v. Butler, 813 F.2d 664, 678

(5th Cir.) cert. denied, 440 U.S. 976

(1979)), on reh'g, 825 F.2d 879 (5th

Cir. 1987), cert. denied, 484 U.S.

1079 (1988);

Porter v. Wainwright, 805 F.2d 930,

943 n.15 (llth Cir. 1986) cert.

denied, 482 U.S. 918, and _ cert.

denied, 428 U.S. 919 (1987) ;

Funchess_ v. Wainwright, 788 F.2d

1443, 1446 (llth Cir.) (per curiam)

cert. denied, 475 U.S. 1133 (1986);

Johnson v. Kemp, 759 F.2d 1503, 1510

(llth cir. 1985)

Watson v. Blackburn, 756 F.2d 1055,

1058 & n.1 (5th Cir. 1985) (per

curiam) cert. denied, 476 U.S. 1153

(1986) ;

-A73-

Sullivan _v. Dugger, 721 F.2d 719

(llth Cir. 1983) (order)

Corn v. Zant, 708 F.2d 549, 563 (llth

Cir. 1983) cert. denied, 467 U.S.

1220 (1984), v

vacated in part on other

grounds, 772 F.2d 681 (1lith Cir.

1985), vacated in part on other

grounds, 478 U.S. 1016 (1986), on

remand, 837 F.2d 1474 (llth Cir.),

cert. denied, 486 U.S. 1023 (1988);

, 578 F.2d

582, 616 (5th Cir. 1978) cert.

denied, 440 U.S. 976 (1979);

Ralph _v. Warden, 438 F.2d 786 (4th

Cir. 1970) (noting in dictum that

Kemmler approved of electrocution as

a form of execution), cert. denied,

408 U.S. 942 (1972);

Vv. i , 404 F.2d 571 (8th

Cir. 1968) (Blackmun, J.)

Kemmler held that a New York statute

authorizing execution by electrocution was

not invalid as against the due process

clause. New York's constitution had a

provision against cruel and unusual

punishment, the same as the Eighth

Amendment, and the New York courts had

-A74-

upheld the execution as measured against

the New York Constitution. As measured

against the U. S. Constitution, of course

narrowly read, Kemmler oniy holds that

there was no violation of due process.

Kemmler has been construed, however, by

the Supreme Court albeit in dictum on the

subject, as stating that electrocution is

not cruel and unusual punishment under the

Eighth Amendment. McClesky v. Kemp, 481

U.S. 279 (1987), Ingraham v. Wright, 430

U.S. 651 (1977), and Estelle v. Gamble,

429 U.S. 97 (1976).

Additionally, to like effect, are the

opinions of Justice Powell, dissenting in

Rummell v. Estelle, 445 U.s. 263, 288, and

a plurality opinion in Gregg v. Georgia,

428 U.S. 153 (1976).

In addition, the Supreme Court has

specifically held in Louisiana etc. v.

-A75-

Resweber, 329 US. 459 (1947) that it was

not cruel and unusual punishment to

attempt a second execution when the first

failed because of mechanical problems with

the electric chair. Notably, the court

stated that "(tjhere is no purpose to

inflict unnecessary pain nor any

unnecessary pain involved in the proposed

electrocution." 329 U.S. and 464.

In the face of all this authority,

there is no contrary decision.

Accordingly, we are of opinion that

the basic premise in the underlying case

in the district court is entirely without

merit.

It is accordingly ADJUDGED' and

ORDERED that the order of the district

court entered January 19, 1993 and herein

appealed from, shall be, and the same

hereby is, reversed.

-A76-

It is FURTHER ADJUDGED and ORDERED

that this case shall be, and the same

hereby is, remanded to the district court

with directions to forthwith dismiss with

prejudice the underlying case, Poyner v.

Murray, No. 92-CV815. Deckert Vv.

Independence Corp., 311 U.S. 282, 287

Block, 717 F.2d 874, 880 (4th Cir. 1983),

Wright, Miller, Cooper and Gressman,

tice dad Procedure, 1977 §

3921.

Let our mandate issue forthwith.

With the concurrences of Judge

Wilkinson and Judge Sprouse.

/s/_H. E. Widener, Jr.

U. S. Circuit Judge

For the Court

-A77-

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

January 19, 1993

No. 93-6052

CA92-815-V

Poyner v. Murray

MANDATE

The order of this Court dated 1/19/93

takes effect today.

BERT M. MONTAGUE

CLERK

-A78-

FILED

February 17, 1993

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 93-6052

SYVASKY LAFAYETTE POYNER,

on behalf of himself and all

those similarly situated,

Plaintiff-Appellant,

versus

EDWARD W. MURRAY, Director,

Virginia Department of Corrections,

ELLIS BE. WRIGHT, JR., Warden,

Greensville Correctional Center,

and JOHN DOE, Executioner,

Defendant-Appellee.

ORDER

There having been no request for a

poll of the court, it is accordingly

ADJUDGED and ORDERED that the petition for

-A79—=

rehearing en banc shall be, and it hereby

is, denied.

We have considered the petition for

rehearing and are of opinion it is without

merit.

It is accordingly ADJUDGED'- and

ORDERED that the petition for rehearing

shall be, and it hereby is denied.

It is FURTHER ADJUDGED and ORDERED

that the petition for a recall of the

mandate shall be, and it hereby is,

denied.

The effect of the entry of this order

is to grant Poyner's motion for expedited

consideration of his petition for

rehearing and petition for recall of the

mandate, although, as is apparent from

this order, the same are denied on their

merits.

-A80-

With the concurrences of

Wilkinson and Judge Sprouse.

/s/ H. E. Widener, Jr.

For the Court

-A81-

Judge

VIRGINIA

IN THE CIRCUIT COURT FOR LOUDOUN COUNTY

oe «7oe8e e2&eeeeoe @ @® @ @ xX

COMMONWEALTH OF VIRGINIA, :

Plaintiff, :

Vv. : Criminal No.

: 8129 —

CURTIS EUGENE WHITE, g

Defendant. :

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Thursday, February 11, 1992

An EXCERPT of a hearing held in the

above-styled matter in the Circuit Court

for Loudoun County, Virginia, in the

courthouse thereof, Leesburg, Virginia,

before the Honorable JAMES H. CHAMBLIN,

Judge of said Court, beginning at

approximately 2:13 p.m.

APPEARANCES

On Behalf of the Commonwealth:

William fT. Burch, Commonwealth's

Attorney

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Owen D. Bashan, Assistant

Commonwealth's Attorney

John H. £McLees, ) Assistant

Attorney General

On Behalf of the Defendant:

Jud A. Fischel, Esquire

Alexander H. Slaughter, Esquire

McGuire, Woods, Battle & Boothe

Harry M. Johnson, III, Esquire

Hunton & Williams

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PROCEEDINGS

THE CLERK: Commonwealth of Virginia

v. Curtis Eugene White, Criminal File No.

8129.

THE COURT: Good afternoon,

everybody.

I trust by you all being here that

you got the message from my Assistant,

that I have denied the Motion for

Reconsideration in this case, and the

hearing will go forward on the 22nd.

If I could just take a couple of

minutes, somewhere aleng the line I would

like, if I have time, but just because of

the press of all the other cases on the

docket of this Court, to somewhere put in

the record as to why I feel the defendant

is entitled to the hearing on this; and

also so there is no misunderstanding as to

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exactly what the Court is going to allow

Mr. White to try to show.

To answer the second part first, it

has never, ever been my intention that

this motion to prohibit the imposition of

the death penalty in this case was to be

an attack on electrocution as a means of

execution in a general sense. It was only

meant to be an attack upon the way it is

done in Virginia. I don't know whether

that has ever been said by me from the

Bench. I tried to put that into words in

the Order that I entered in the latter

part of December. But I just want to make

sure that everybody understands that. And

I think that everybody does, primarily

based upon what Mr. Johnson said when we

were here two days ago.

But just briefly, several reasons why

I feel that this ought to be raised:

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First of all, I went back, and looking at

all the Virginia cases that were cited to

me, and it seems to me that it is true,

there's just, for some reason, some sort

of a blind adherence to this rule that

came up from the decision of the U.S.

Supreme Court back in 1890, that it's not

cruel and unusual punishment for execution

by electrocution; and that that decision

was made without any real findings of

fact, without any real factual basis to

support it.

And it just seems to me that we are a

country, we pride ourselves in our

Constitution, both our U.S. Constitution,

our State's Constitution, Virginia's

Constitution, as being a viable working

document that is supposed to work with

society as society's attitudes change over

periods of time.

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And certainly science and technology

has advanced an awful lot since 1890. And

I feel that somewhere a Court has got to

hear the evidence of what the state of the

art is now on the effect of electricity on

the human body during the course of

execution by electrocution in Virginia.

Also, I really came to this

conclusion when it kind of dawned upon me,

and I don't profess to be a constitutional

scholar, but why have many, I'm sure

hundreds of thousands of hours, and Lord

knows how many pieces of paper have been

spent on trying to define the

circumstances under which the death

penalty can be imposed. And just look at

the number of cases on that that have

gotten to the U.S. Supreme Court. And we

talk about very minute, little things,

down to even questions that you ask the

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jurors on determining whether or not the

death penalty could be imposed, and it

seems like you just draw a line. If

everything is constitutionally permissible

up to the time that the death penalty is

imposed, you draw a line, and you don't

look at how it's done, when all of it is

supposed to be based upon the same

constitutional provision.

I just think that it's time that some

Court somewhere, if it's not me, it will

probably be somebody else, so why not let

it be me, and let me make this decision,

and this evidence should bé~heard.

Now, having said that, and just so

it's on the record somewhere, so somebody

who is reviewing this somewhere down the

road doesn't wonder sometime why I did

what I did, let's go forward and deal with

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what we have to deal with here this

afternoon.

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CERTIFICATE

STATE OF VIRGINIA:

COUNTY OF LOUDOUN:

I, Deborah Schmid Weathersbee, Notary

Public for the State of Virginia At Large,

do hereby certify that I reported the

foregoing by stenographic and mechanical

mean, which matter was held on the date,

and at the time and place set out on the

title page hereof; and that the foregoing

constitutes a true and accurate transcript

of same.

I further certify that I am not

related to any of the parties, nor am I an

employee of or related to any of the

attorneys representing the parties, and I

have no financial interest in the outcome

of this matter.

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GIVEN under my hand and seal this

12th day of February, 1993.

My Commission Expires:

February 28,

1995

/s/ Deborah S. Weathersbee

Notary Public

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.