# Appendix — Poyner v. Murray

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0428%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 981

## Text

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EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
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MAP 17 °93 10:23 HNP DIVISION

Wise Serie

A698

IN THE

SUPREME COURT OF THE UNITED STATES

SYVASKY LAFAYETTE POYNER, et al.,
Petitioners
v.

EDWARD W. MURRAY,
Director, Virginia Department of Corrections, et al.,

Respondents

On Petition for a Writ of Certiorari
to the United States Court of Appeals
For the Fourth Circuit and
Motion for Stay of Execution

RESPONDENTS’ APPENDIX
To Brief in Opposition to Petition
for Writ of Certiorari and Opposition
to Motion for Stay of Execution

TABLE OF CONTENTS

r | OQ “ ar 9 . +
December !0 1992, Injunction order of district court
December 10, 1992, order of Fourth Circuit vacating :njunct
- ~ we th we ae i= JMS
January 21, 1993, order settine tion 4
. wary ol, | 5, Order Setting Execution date

Poyner’s petition for appeal from January 21 order

March 10, 1993, order of Virginia Supreme Court refusing

petition for appeal
Pp vner
» - } r “~
YOTLOLK > 2 >
. rT « Tra nn* 1TC"D *_*56o Af F
SYVASKY LAFAYETTE POYNER #.12505.,

th _ mmr A

Vv ceVew Aes sb OM
.

a? “Re ~AA "

t\/ « 9a 7EVUSaeN

EDWARD W. MURRAY, Director cf the
Virginia Deréaértment

Respondent.

MAGISTRATE 'S REPORT AND RECOMMENDATION

This matter was initiated by petition for 4 writ of habeas
A gy - ae. . _-_ 5 an as r 7 e
corpus under 28 U.S.C. § 2254. Petitioner is a prisoner 1 the

Virginia penal system awaiting execution of a death sentence. The
d

matter was referred to the undersigne United States Magistrate
pursuant to the provisions of 28 U.S.C. § 636{b)(1)(B) and (Cc
and Rule 29 of the Rules of the United States District Court ‘fo:

the Eastern District of Virginia.

ATEMENT OF THE CASE

1. Background

Petitioner was convicted on June 6, 1984, in the Circu:
Court of the City of Williamsburg and County of James City ‘fo
the capital murder of Clara Louise Paulette and the capita’
murder of Chestine Brooks. On June 7, 1984, the jury sentenced

petitioner to death for each capital murder conviction. On

July 18, 1984, the trial court affixed petitioner's sentences of
death. Petitioner is currently incarcerated in the Virginia

I

penal system awaiting execution of these death semtences as we--

as three other death sentences.

~ - an ~ > > ~~ - —- é ~» +
\ 4 Te e* é Cte ‘« ae .
o . _ - on, oe § a
convictions in three separate triacs. Pet: ti:sner's trial

Williamsburg was the first of the three trials. The seco!

93 10:24 HNP DIVISION P.Se
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ek ~ o ams a I e- = . - nama ms
wees “Gs sSGS scu.s.sei°S SGESECt SesMm Aindsieks, Bur rashas ‘cc
che perspective of counsel at the time in cuestison. 16 Prom
the Ceurt'’ review of the record, 1% appears that counse)] acted
competently anc adequately The Court finds no viclation og
Washinsece with resrece

says, counse. has ne basis ‘ &@!

tenuating circumstances and even if they had, it was within thet

province tc select what tactics they would use at trial:

A 495 ZL

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MAP 17 °S3 10:24 HNP DIVISION =

UNITED STATES DISTRICT COUR

FO? were r+ Orr ewer rr cro Tan ~ = «1 e+ ¥
pes o 4% = - 7 &£ée 66 w .

Richmond Division

SYVASKY L. POYNER, on behalf

of nNimself and all others
Similarly situated,

—— — +

Vv.

EDWARD W. MURRAY, Director, Virginia
Department of Correction,

ELLIS B. WRIGHT, JR., Warden,
Greensville Correctional Center,

and JOHN DOE, Executioner,

ee ee ee eee eee ee ee ee eee

Defendants.
ORDER

WHEREAS plaintiff Syvasky L. Poyner, on behalf of himself
and all others similarly situated, by counsel, filed a Complaint
against Edward W. Murray, Director of Virginia Department of
Corrections, Ellis B. Wright, Jr., Warden, Greensville
Correctional Center, and John Doe, Executioner, seeking permanent
injunctive and declaratory relief pursuant to 42 U.S.C. § 1983
with respect to the allegedly unconstitutional procedure and
means utilized by the defendants and prescribed by the law of the
Commonwealth for executing prisoners in Virginia;

AND WHEREAS plaintiff has served on defendants a request to
permit entry upon land for purposes of inspecting and videotaping
(with audio) the execution of Timothy Bunch, scheduled for
Thursday, December 10, 1992 at 11:00 p.m. at the Greensville
Correctional Center;

AND WHEREAS plaintiff? also has recuestei that the condemnec

prisoner's face be visible during the execution;

35

MAP 17 °SS 10:25 He DIVISION P.34

AND WHEREAS plaintiff also has requested that plaintiffs
oe eat @ >.-2661 &S ,G53i~-4§6 ° roby? Spt7
Bunch;

AND WHEREAS plaintiff has filed a motion to shorten time for
defendants to respond to plaintiff’s rm quest to permit entry upon
land for inspection and videoteping ard requiring defendants to
provide plaintiff’s representatives access to the Execution Chamber
at the Greensville Correctional Center for the purpose of
inspecting and videotaping the execution of Timothy Bunch;

BAVING CONSIDERED the arguments contained in plaintiff’s
motion and memorandum in support thereof, and the oral arguments of
counsel for the plaintiff and counsel for the defendants before
this Court;

IT IS ADJUDGED AND ORDERED that defendants are manditorily
enjoined to permit Gilbert F. Halasz, this Court’s reporter, for
the purpose of supervising Charles Bradshaw, both of whom shall be
permitted entry into the Execution Chamber of the Greensville
Correctional Center at 9:00 p.m. on Thursday, December 10, 1992,
for the purpose of inspecting and videotaping (with audio) the
execution of Timothy Bunch;

AND IT IS FURTHER ADJUDGED AND ORDERED that the execution be
performed with the condemned prisoner’s face visible during the
execution providing same is agresable to the condemned prisoner,
who shall be asked to estate his acquiescence or refusal in the
presence of the aforementioned Gilbert F. Halasz.

s- of FOMTZER PCIVDGED ABD CRETRED *tat t's ea: Chet ¢

Bradshaw, for the purpose of videotaping the execution, be placer

4.

MAP 17 "S92 10:25 HM DIVISION p.

‘h

in a position whereby the camera will be able to observe the

-

person other than the condemned prisoner. Freete-ec-ceesetrte such

Following said execution, the videotape shall be placéd in the

_- 3 . —
-

poseession of Cilbert F. Zalasz, who shall deliver the sare to the
Court prior to any viewing of said tape.

T IS PURTUER ADIVDGED AND ORDERED that plaintiff may have one
representative present to observe any autopsy that may be performed

on the said Timothy Bunch.

Date /2-/0- F3
2.16 gm.

A TRUE COPY TESTE:
DORIS R. CASEY, CLERK OF COURT

ti eer, "= 7 a som,
MAF ET? %o2 "fo: 26 me DIvisiil-=t!

-= J cb

°. 368 mee Ie SS 10:28 He vist ;
} P.27
Filed: December 19, 1932 '
mT -
a tate ai of Bunch nad been set by the Circuit Court of Prince Willian Courty
a. ..3's - P : . a *. ‘. - «apt 8
No. 92-7229 including Poyner and his attorneys.

In addition to the aforementioned unseemly and undue haste in
IN RE ELLIS 8B. TSHT, this matter of grave public importance, the petition for a Writ of
Petitioner. Prohibition places grave dourt on whether the district ccurt had
any jurisdiction to act in the premises.
Because of the requirements of time, argument on the Petition

for Writ of Pronibition could not be hac; neither was there time to

ORDER require memoranda. ‘The papers before us, however, reveal on their

face an attempt by Poyner to interfere in the execution of Bunch,
ana the jurisdiction of the district court to interfere in Bunch's

execution at the instance of Poyner 1s very doubtful if it exists
tn the case of Poyner vy. sMurxay, Civil Action Nuaser 92-CV-
at ali.
@lS5, in the United States District Court for the Eastern District
It is accordingly ADJUDGED AND ORDERED that the order of the
of Virginia at Richmond, the @istrict judge issued an
district court referred to above in the case et Poymer y. Murray.
injunction requiring the Petitioner to permit the photographing by
Civil No. 92-CV-815, shall be, and it hereby is, stayed and held
videotape of the execution of Timothy Dale Bunch with Bunch's mask
for naught until further order of one of the judges signing this
removed, and thereafter to participate in the autopsy of the body
order or of this court.
of said Bunch following Bunch's execution, as well as to take other
Because section 1651(b) indicates definitely that either Judge
similar actions.
Widener or Judge Wilkinson or Judge Sprouse may enter this order as
The Petitioner has sought here a Writ of Prohibition under 28
an individual judge they have signed the seme as individual judges.
ll_S.cC. § 1651 questioning the jurisdiction of the said district

So far as they may ba considered as acting for the court, they
judge to have issued said order.

have signed this order ae 4 panel therect.
We note that the said order of the district court was issued

at the eleventh hour, that is to say at about 7:15 p.m. before 4

scheduled execution time of 11:00 p.n., aithovrh tre cvyecut .2”

mee 17 "9s"io:zé HE DIVisION™™” oo OF Ee P. 38

Jz Jeres M.foroyse

United States Circuit v~-dge

7 “r ’, 7 4 7 oo

J. Harvie Wilkinson, Tit
United States Circuit Judge

MAP 17 °93 10:27 HRP DIVISION Pe.

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VIRGINIA:

l were CeRcu:. J | i vk wee —! r

AND COUNTY OF JAMES CITY

aa " n&

COMMONWEALTH OF VIRGINIA

. CRIMINAL NOS. 4868-4, 4869-4

SYVASKY LAFAYETTE POYNER

ORDER

On the 2/37 day of Bowan y 1993, pursuart to Section 53 1-252 of the Code of Virginia,
came the Commonwealth, by its Amorney, and the Defendant in person and with counsel, to be heard
upon the Commonwealth's Motion to set an execution date

There is presently no stay of execution in effect. Having determined that an execution cate
should be set, this Court hereby ORDERS that me exec.tion of Syvasky Latayette Poyner s ceath
sentences be carried out on the 18th day of March, 1993, at such a ume of day as the Director o: we
Department of Corrections shal! fix.

It is further ORDERED that at least ten (10) d2vs before March 18, 1993, the Director sha!
cause a copy of this Order to be delivered to the cefendant and, if the defendant is unable to read it
cause it be explained to him, The Director sali make return thereot to the Clerk of this Court

The Clerk is directed to promptly furnish certified copies of this Order to the following persons

Edward W. Murray, Director

Virginia Department of Corrections
P.O. Box 26963

5900 Aunore Drive
Richmond, Virginia 23261

George C. Fairbanks, [V, Commonwealth's Attorney

P.O. Box 333 _
Williamsburg, Virginia 73197 Re i

CRIMINAL titic ST TOM Sox

Alexander H. Slaughter, Esquire
M-Grire Warde Bente © Rareke

_

=r

Richmo Ad. Virginia 23219

Katherine B. Toone
Assistant Atlorney Genera!
Office of the Attorney General

S\ nreme Court Re 4.8.9
!0i North Eiehth Srreet
Richmond, Virginia 27219

Entered this 2/ Gay a"
f Judge

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MAP 17 ’S2 10:22 HNP DIVISION

aaa
‘fr :

Beaver v. Commonwealth,
cert. denied , 483 U.S.

Vv , 668 F.2d 52 (1st Cir.
456 U.S. 983 (1982) . -. «© © © «© © © © © © & 2

Blue Cross of Virginia vw. Commonwealth, 218 Va. 589
239 S.E.2da 94 (1977) . * * . . al * > al * . . >.

1033 (1987)

Buck v. Bell], 143 Va. 310, 319, 130 S.F. 516 (1925)
aff'd, 274 U.S. 200 (1927) . » « © © © © © we

nov er, No. 90-473-CIV-ORL-19, 1990 WL
119637 7 D. Fla. 1990) ..+s. - “a :

Bueneano v. State, 565 So.
| Burts v. Burts, 227 Va. 618,

2d 309 (Fla. 1990) .

316 S.E.2d 745 (1984)

Crim. No. 8129 (February 11, 1993) .... .

467 U.S. 1220 (1984) ...- .- 2 © =e 62 4

Estelle v. Gamble, 429 U.S. 97 (1976) ......

, 788 F.2d 1443 (11th Cir.),

denied, 475 U.S. 1133 (1986) ....+.--.

, 308 S.E.2d 806 (Ga.

| Godfrey vy. Francis 1983),
: cert, denied, 466 U.S. 945 (1984) °

Gray _y. Commonwealth, 233 Va. 313, 356 S.E.2d 157,
- cext. denied, 484 U.S. 873 (1987) ..-+-.+-.

Gregg v. Georgia, 428 U.S. 153 (1976) »~ » - «© + «=

, 131 Va. 726, 109 S.E. 582
Dito. 4 6 = 6 6 6.4 & 6 6 2 © « & 0.8

, 237 Va. 303, 377 S.E.2d 595,

cert. denied, 491 U.S. 910 (1989) ..-+-.--.
Ingraham v. Wright, 430 U.S. 651 (1977) - + +++:

Jachsor_ ve. Eiahon, {cs F.2d S71 (Eth SLY. 14'S)

ii

232 Va. 821, 3&2 S.E.2da 342,

1981), cert. denjed,

;

Commonwealth v. White, Circuit Court for Loudoun County,

Corn vy. Zant, 708 F.2d 549 (11th Cir. 1983), cert. denied,

cert.

16,

P.43

17,

3,

18

24

12

20

20

18

25

17

18
20

. = 9°27 12:70 wT ATUTST ide i AP
MAF 1° S23 10:29 HNP DIVTSIC OWN P44

MAP 17 ’93 10:29 HF DIVTSION Pgs
'
}
, 759 F.2a@ 1503 (llth Cir. 1985), aff'd, 781 :
F.2d 1482 (11th Cir. 1986) ... ic -... ete, Ritter v. Smith, 568 F. Supp. 1499 (S.D. Ala. 1983),
ais “d_2h-Felevent 287%. a eR on n_other crounds,
aehNSs7 - * . > >. * . . a. . > > . > * * . . . . >. . 16, 20
State v. Black, 815 S.W.2d 156 (Tenn. | ae a ee ee
Lowenfield v. Phelps, 817 F.2d 285 ree Cir. 1987), aff'd
484 U.S. 231 (1988) ..... ie ole ae aie 20 Stephens v. State, 580 So. 2d 11 (Ala. 1990),
cert. denied, 112 S. Ct. 176 (1991) - + + + e+ ee ees 20
onwealth, 221 Va. 436, 271 S.E.2da 123
- 4e4as 68 wee ee 6 oa 6 6 ew 6 ey He Me stockten-¥._Commomina. eh, 241 Va. 192, 402 S.E.2d 196,
___ U.S. ___, 112 S. Ct. 280
McCleskey v. Kemp, 481 U.S. 279 (1987) 2 A eat ae eel er urs. Senias ele’. se oe 6 6 & 88 8 8 8 ae 18
McGill] v, Duckworth, 726 F. Supp. 1144 (N.D. Ind. 1989), Stockton vy, Commonwealth, 227 Va. 124, 314 S.E.2d 371,
aff'd in part and rey'd in part, 944 F. 2d 344 cert. denied, 469 U.S. 873 (1984) ie Oe 6 6 % os ae 17
(7th Cir. 1991), cert. denied, 112 S. Ct. 1265 ,
eo 2 ee. 7 . . > . > el . * . . * . . . . . . . 7 7 . * . 6
, 438 F.2d 786
(4th Cir. 1970), csrt. asniss. 408 U.S. 942
(1972) . « « « ° ies SS Me
iii ,
iv

§ 10:29 HP DIVISION

CONSTITUTIONS

v0.8. Const.

STATUTES AND MISCELLANEOUS
42 U.S.C § 1983 (1992)

Code § 53.1-223 (Repl. Vol.

, Va. Code §
53.1-233 (Repl. Vol. “

Rules of Supreme Ct.

Mar 17 "93 10:30 HNP DIVISION ep. d7

_ ae | ey 7377 (+ Pm rmon - “y o-+4 i?- hE Fr tes . a r7@°* -*« in ~-

Petition For Appeal from the order entered January 21, 1993, by
the Circuit Court of the City of Williamsburg and James City
County setting the date of Poyner's execution by electrocution.
See Exhibit 1 (attached). The court erred by denying Poyner's
motion for an evidentiary hearing to determine whether the
recently redesigned and relocated electric chair in the
Greensville Correctional Facility inflicts cruel and unusual
punishment upon prisoners.

When Poyner was originally convicted in 1984, the
Commonwealth executed prisoners in an electric chair in the State
Penitentiary in Richmond. In 1990, however, the Commonwealth
scrapped the old prison and the old electric chair, and located 4
new death chamber and redesigned electric chair in Greensville
County, Virginia. Moreover, the Commonwealth changed its method
of electrocuting prisoners in late 1991 after a botched execution
in which the prisoner did not die as quickly as the Department of
Corrections apparently expected. The Commonwealth decided for
future executions to subject prisoners automatically to a second
massive jolt of electricity. Se¢ Exhibits 2 and 3 (attached).

Based on.substantial evidence gathered by his counsel
concerning the gruesome cruelty of the new device and procedures,
Poyner sought to challenge this new method of punishment below.
Neither the Greensville electric chair nor the new procedure
recuirine the prisoner to undergo two jolts of e’ectricityv

exie*si in 19%4, co this in Poyner's fir=* eprops"... €s ne

1

MAR 17 '93 10:20 HNP DIVISION en

}

his constitutional claim in a Virginia state court. The lower
court erroresus*: @enie* re sab WE ; 7 oF Oi
important issue.

This appeal implicates an issue of immense public
importance: Is the Commonwealth of Virginia now executing
prisoners in a cruel and wnusual manner in violation of the
Eighth and Fourteerth Amerdmerts of the United States
Constitution and in violation of Article I, Section 9 of the
Virginia Constitution? A tribunal in the Commonwealth must
eventually conduct an evidentiary hearing on the matter.

Although numerous cases, both federal and state, have stated
the general proposition that death by electrocution is not cruel
and unusual, no court in Virginia has ever reviewed any evidence
about the physical effects of electrocution as carried out in
Virginia. No litigant has ever presented a Virginia court with a
proper record and evidence, as Poyner is prepared to do, on which
a court can base a reasoned decision on the issue. Indeed, no
court since 1890 has considered evidence about electricity's
effect on the human body, despite significant advances in medical
and scientific understanding of these phenomena. An evidentiary
hearing on the mature of electrocution in Virginia that includes
testimony of preeminent experts in the relevant fields of science
and medicine is necessary to decide the issue.

This appeal should be granted to resolve an imminent split
among the circuit courts of Virginia. The lower court's ruling

in this case conflicts with the recent ruling of another circuit

1%

MAR 17 "93 10:31 HNP DIVISION ° 4

court. The Circuit Court for Loudoun County agreed that a

> ‘ %
Virginia *curt + piPe-s@ ep *%ia wer. te - 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
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 (attached as
Exhibit 12). The evidentiary hearing, however, never took place
because the Commonwealth dropped the capital murder charge the
next day and rendered the issue moot. Of course, the ruling in
Loudoun County assures that other capital murder defendants will
continue to assert this claim until this Court issues a
definitive ruling on the propriety of an evidentiary hearing.
Although Poyner has previously pursued the ordinary course

of appeals

y : at
ee, 8 A the constitutionality of the new

; e*
procedures the redesigned electric chair in a Virginia court

Pe

habeas corpus petitions, he never had the |

tpoyner's counsel had appeared as special counsel for the
defendant White for the sole purpose of presenting the
constitutional challence to Virginia's particular form of

electrocution.

19

MAP 17 °S3 10:21 HNP DIVTEION P.O

until the Commonwealth moved to set his execution date at the

hearin me -2> a 2. 4 - er >

court below denied Poyner's request for an evidentiary hearing on
the issue and set the execution date for March 18, 1993. Poyner
now faces a form of punishment that he contends causes
unconstitutional ly excruciating pain and terture. If this Court
does not vacate the trial court's ruling and remand the case for
a hearing, Poyner will not have had, and never will have, the
opportunity to present his evidence to a court in this

Commonwealth.

II. ASSIGNMENT OF ERROR

The court below erred in denying Poyner's motion for an
evidentiary hearing regarding the constitutionality of Virginia's

new method of electrocuting prisoners.

III. QUESTION PRESENTED

Did the court below err when it denied Poyner his day in
court to present evidence in support of his claim that the
Commonwealth's new electric chair in Greensville and new
procedures for automatically applying a second jolt of
electricity inflict unnecessary pain and torture in violation of
the United States and Virginia Constitutions?

This question relates to the sole assiconment of error.

£0

MAP 17 °93 10:32 HNP DIVTSION P.S1

IV. MATURE OF THE CASE AND MATERIAL PROCEEDINGS BELOW

om ©
—

Pevmaw was erictrally eenvicie? ¢ twee caunee oe? es:
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 § 53.1-223 (Repl. Vol. 1991)( the amendment
rescinded the requirement that executions be performed in
Richmond). Poyner appealed the convictions and death sentences

to this Court, which affirmed each conviction and death sentence.

Poyner_v. Commonwealth, 229 Va. 401, 329 S.E.2d 815, cert, denied

gub nom. Poyner vy. Virginia, 474 U.S. 865 (1985). Although
Poyner generally challenged the constitutionality of Virginia's

capital murder statute on direct appeal to this Court, gee Poyner
Vv. 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.
Prior to 1990 (when the Department of Corrections began
using the present electric chair in Greensville), Poyner
unsuccessfully filed petitions for writs of habeas corpus im
state and. ] courts. Of course, the Gommoawemlth had not
Btwo~jolt" procedure ner- sedesigned and resired

the el air. Thus, until now, Poyner has never been able
. Ja to os « >
to challenge: in: estate court the new method by which the poe
Commonwealth now seeks to execute hin. Met uaa
7 r 4 UMass ici !
5

Zl

MAP 17 ’°S92 10:32 HNR . i P.e>
)

Poyner recently attempted to raise this issue in federal]
court in a Claes acticr uniter . «
prohibits dissemination of the autopsy reports. ges Exhibit 11
(attached). Consequently, Poyner's counsel are not free to
include them here.

25

MAR 17 ’93 10:34 HNR “= P. S56
)
materials about Virginia's method of execution and are prepared
to describe the horrific and w~imaqireble sensations that +’
believe are experienced by prisoners. Particularly during the
application of multiple electrical jolts, it is likely that the
electricity stimulates several regions of the human brain, many
of which cause intense feelings of horror, pain, or dread when
activated. Widespread and simultaneous activation of many parts
of the human brain may well cause the individual to sense every
form of pain and horor that can possibly be experienced. Even if
this were not to occur and very little current actually reached
the brain, then intense pain is likely to be felt from the
extensive burns and maximal muscle contractions generated by the
electricity. Unlike other forms of execution, this form of
electrocution likely triggers responses throughout the many pain-
related regions of the brain at the same time. Other forms of
execution, such as hanging or the gas chamber, both produce brain
death without directly exciting brain regions and excite other
tissues that cause pain in a much more limited way.

Poyner has collected this evidence to show the courts what
the Commonwealth is doing to prisoners in Greensville. If the
courts are. king to consider this important issue of
constitut : , then the Directar’of Corrections will

effectivel ettered discretion to execute prisoners with
“[OMorve 1.71 as
no constituttemel] limitations. The Circuit Court for Loudoun

County recognized that Virginia courts must play = role in this
° - a ? :

. .

10

26

MAR 17 ’93 10:34 HNP DIVTSION P.S?

)

area. The circuit court below erred when it ruled to the

contrar’;.

VI. ARGUMENT

This Court should reverse the trial court's refusal to
permit the presentation of evidence regarding the
constitutionality of death by electrocution for four reasons: (i)
Poyner has never had the opportunity to have his day in court to
challenge the constitutionality of the new electric chair in
Greensville; (ii) no Virginia court has ever heard evidence
regarding the constitutionality of Virginia's procedures and
methods for execution by electrocution; (iii) no state or federal
court has heard evidence on the constitutionality of
electrocution since 1890; and (iv) the evidence will show that
electrocution as administered in Virginia violates the
prohibition against cruel and unusual punishments contained in
both the United States and Virginia Constitutions.

A. Poyner Must Be Allowed An Opportunity To Challenge
Virginia's New Electric Chair And New Procedures For

Bxecutions.
This Court has consistently and zealously guarded the right

to one's day: in court:
— SO
Thec@rial court's conduct gave rough
taeaement to Mrs. Burts’ right to due
process. The Constitution of our
Commonwealth makes crystal clear that "[njo
person shall be deprived of his life,
liberty, or property without due process of
law." Va. Const. art. I, § 11. In Moore vy.
Smith, 177 Va. 621, 626, 15 S.E.2d 48, 49
(1941), we said the following about the
mature of due process: "A day in court. en

11

27

MAR 17 °S3 10:35 HNP DIVISION P.SS

) )

opportunity to be heard, is an integral part

of due process of law, everywhere

resocr:izc?."
Burts v. Burts, 227 Va. 618, 619-20, 216 S.E.2d 745, 746 (1984).
See also Shevel's, Inc. v. Southeastern Assocs., Inc., 228 Va.
175, 183, 320 S.E.2d 339, 344 (1984) (even though appellant bore
heavy burden of proof in trying to establish affirmative defense,

he was entitled to his “day in court" and an opportunity to carry

his burden); Blue Cross of Virginia v. Commonwealth, 218 Va. 589,
598, 239 S.E.2d 94, 98 (1977) (appellant was entitled to its day
in court to challenge the constitutionality of statute, and this
Court remanded case to SCC for a determination of
constitutionality). The lower court's denial of Poyner'sc motion
for an evidentiary hearing has prevented Poyner from having his
day in court on his contentions about the Greensville electric
chair.

On February 10, only two weeks ago, the Circuit Court for
Loudoun County held that a Virginia court ought to hear evidence

on this very issue:

(L)ooking 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
“emecution 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

12

£8

MAR 17 ’93 10:35 HNP DIVISION P.S9

) )

document that is supposed to work with
society as society's attitudes charve over
periods of tire,

And certainly science and technology has
advanced an awful lot since 1890. And I feel
somewhere a Court has got to hear the
eviderice 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. Whitc, Circuit Court for Loudoun
County, Crim. No. 8129 (February 11, 1993), at 4 (attached as
Exhibit 12). The ruling of the Circuit Court for Loudoun County
is significant because a Virginia state 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. Like the defendant in White, Poyner is entitled to
present the evidence to a Virginia court.

The circuit court's ruling in Loudoun is especially
significant because, only 45 minutes after the conclusion of the
hearing in which the court explained why it felt compelled to
hear evidence about electrocution in Virginia, the Commonwealth
notified the court that "it was 98% sure” that it would be
dropping the capital murder charges (which had been pending for
over six months) against defendant White. Indeed, on the next
day, the capital murder charges were officially dropped, thereby
rendering the constitutional issue and the evidentiary hearing

moot. The Commonwealth thereby avoided defending the

13

Z4

MAR 17 °9S3 10:36 HNR piven

)

constitutionality of Virginia's electric chair in that
proceecing.

Especially in light of the Virginia court's decision in
Loudoun County, Poyner's previous attempt to raise this claim in
federal court is not dispositive here. The Fourth Circuit acted
without the benefit of a fully developed record, and in fact,
dismissed the case immediately upon receiving a notice of appeal
from a very limited discovery order. Within three hours of the
filing of the Commonwealth's notice of appeal to the discovery
order, before the Commonwealth had filed any papers supporting
its appeal, and before Poyner had the opportunity to respond in
any way, the Fourth Circuit panel entered a five-page order which
did not consider directly the discovery issue on appeal.

Instead, the federal appeals court took the extraordinary and
unprecedented step of issuing a mandate to the federal district
court to dismiss Poyner's lawsuit with prejudice. At the time of
this ruling, the Commonwealth's motion to dismiss was still
pending in the district court. Poyner's time to file his brief
in opposition to the motion had not yet run, oral argument had
not yet been held, and, of course, the district court had not yet
ruled on Caompemwealth's motion.

The fies as court's reasoning was fundamentally flawed
because it queued all forms of electrocutions to be per ge
constitutional in every case. But, even if electrocution is a

constitutionally permissible mode of capital punishment, not

14

40

MAR 17 °93 10:36 HNR DIVISION P.61
)
)

every form of electrocution is automatically constitutional.*
Stated avrother war’, if at’ farrs ef ele trom ls. were pre:
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 cf 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.

The Circuit Court for Loudoun County was well-aware of the
Fourth Circuit's decision when it was considering whether to
conduct the evidentiary hearing, and it recognized that the

federal decision was simply not persuasive. The persuasive

effect of the federal court's order should likewise be minimal in
this Court, given the extraordinary procedural history and the
failure to develop a record before ruling.

The Circuit Court for Loudoun County was prepared to hear
Poyner's evidence. Poyner now faces the prospect of being
executed by a method that he potentially can prove to be
unconstitutional before he has a forum and a “day in court" to

present his evidence.
a This . therefore, should vacate the lower court's order

for an evidentiary hearing to resolve this
important canst itutional challenge.

*Likewise, though the death penalty has been consistently
ruled constitutional, not every method of inflictirg capital

punishment is per ge constitutional.
15

31

MAR 17 °93 10:37 HNP DIVTSION p.

)

Py

B. Wo Virginia Court Has Ever Heard Evidence On The
Constitutionality of Virginia's Procedures Or Method of

rc LM CES fT), Se
The oft-cited decisions of both Virginia and federal courts
which have upheld the constitutionality of death by electrocution
can be categorized in one of two ways: (i) decisions that cite
no authority for upholdirg the constitutionality of
electrocution,® or (ii) decisions that rely on the United States
Supreme Court's 1890 decision in In re Fermler, 136 U.S. 436
(1890), or on other decisions which, in turn, rely on Kemnler.®

No court has considered modern medical evidence of the

physiological effects of intentional electrocution. In fact, no

> Jones v. Whitley, 938 F.2d 536, 542 (Sth Cir.), cert.
denied, U.S. __, 112 S. Ct. 8 (1991); Lindsey v. Smith, 820
F.2d 1137, 1155 (ilth Cir. 1987), cert. denied, 489 U.S. 1059
(1989); Johnson v. Kemp, 759 F.2d 1503, 1510 (llth Cir. 1985),
aff'd, 781 F.2d 1482 (1ith Cir. 1986).

* McCleskey v. Kemp, 481 U.S. 279, 299 (1987) (dictum);

, 329 U.S. 459, 463 n.4
(1947); Lowenfield v. Phelps, 817 F.2d 285, 298 (Sth Cir. 1987),
aff'd, 484 U.S. 231 (1988) (incorporating the district court's
Opinion at 671 F. Supp. 423 (E£.D. La. 1987)); .
813 F.2d 664, 678 (Sth Cir. 1987), cert. denied, 484 U.S. 1079
, 788 F.2d 1443, 1446 (lith Cir.),

(1988);
cert. > 475 U.S. 1133 (1986); , 241
Va. 192, 408r8.E.2d 196, cert. U.S. , 112 S. Ct. 280

(1991); » 237 Va. 303, 237 Va. 303, 377
S.E.2a 595, cert. , 491 U.S. 910 (1989); Townes y,

» 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied.
485 U.S. 971 (1988); Beaver vy, Commonwealth, 232 Va. 521, 352

S.E.20 342, cert. denied, 483 U.S. 1033 (1987); Stockton vy.

Commonwealth, 227 Va. 124, 314 S.E.2d 371, cert. denied, 469 U.S.
873 (1984); Martin v. Corpmonwealth, 221 Va. 436, 2713 5.2.24 123
(1980).

16

32

MAR 17 °93 10:37 HNP DIVTSION P.63

)

Virginia court has ever considered evidence in deciding the

, : s : e .
eo > 7 -- [‘-.- : - _—- -~ + -~*
Vics & we me Ne Re ee ee Oe fc." « “-- ~* .

This Court first reviewed the constitutionality of
electrocution in Hart v. Commonwealth, 131 Va. 726, 743-44, 109
S.E. 582, 587 (1921), which directly relied on the holding in
Kemmler as the foundation for its decision. Without analysis or
evidence, Hart accepted the faulty factual premises of Kemmler as
true. Jd, Nevertheless, Hart expressly recognized that the
Virginia Bill of Rights prohibits modes of punishments that
“involve torture or lingering death.” Jd. Poyner is prepared to
prove with contemporary evidence that electrocution in
Greensville does “involve torture or lingering death."

Subsequent decisions of this Court can likewise be traced
back to Kemmler as the basis for finding electrocution not cruel
and unusual. In Martin v. Commonwealth, 221 Va. 436, 439, 271
$.E.2a@ 123, 125 (1980), this Court upheld electrocution citing
Kemmler and its previous decision in Hart. Stockton v,
Commonwealth, 227 Va. 124, 134, 314 S.E.2d 371, 378 (1984),
relied on Kemmler and the decisions in Hart and Martin. In

Beaver vy. Commonwealth, 232 Va. 521, 527, 352 S.E.2da 342, 345-46
(1987), this Court relied on its decisions in Martin and

7of course, this is not a failure of the Virginia courts
because apparently no litigant has ever attempted to proffer —
evidence on this issue. This Court acts on the record before it.
Without a record demonstrating that the electric chair is
inflicting cruel and unusual punishment, this Court is
constrained to uphold the constitutionality of the punishment.
Poyner, however, was wrongfully denied the opportunity to present
evidence and create a record for this Court to review. Therein
lies the error of the circuit court below.

17

53

MAR 17 "S93 10:38 HAF DIVISION P.64 | MAR 17 °S93 10:38 HNP DIVISION P.6

) )

Stockton. In Stockton v. Commonwealth, 241 Va. 192, 215, 402

$.E.2@2 i96, 209223, sexe. do-ie@, 222: ee. 286

Court simply referred to its decision in Martin as the basis for
upholding electrocution.

This Court's decisions in Hoke vy. Commonwealth, 237 Va. 303,
306, 377 S.E.24 595, 597, cert. denied, 491 U.S. 910 (1989) and
Townes vy. Commonwealth, 234 Va. 307, 335, 362 S.E.2d 650, 6:
(1987) also descend directly from Kemmler. In Hoke, this Court
relied on a variety of decisions for upholding the Virginia Death

Penalty statute and cited for its authority its previous decision

in Gray v. Commonwealth, 233 Va. 313, 320, 356 S.E.2da 157, 160-
61, cert. denied, 484 U.S. 873 (1987). Im Gray, this Court
upheld the constitutionality of the death penalty statute in
Virginia based on previous decisions of the Court. However, the
only cited decision which related to the constitutionality of
electrocution was Stockton, 227 Va. at 134, 314 $.E.2d et 378,
which in turn simply relied on the Kemmler opinion. In Stockton,
the appellant did not present any evidence of the effects of
electrocution.

In Townes,® this Court relied on its decision in Pope.
#1214, 121-22, 360 S.B.24 352, 353. (39e7),
js0 Fitte - o, we 6498 (2.3. Aria.
prior rulings ge Fegurding electrocution, but the opinion sxpressiY

acknowledged the possibility of overturning those precedents ir
the future. Towreg, 234 Va. at 335, 362 S.F.2d at 666.

18

34

) '

death penalty statute. However, the only two decisions which

facues the Goneti@stis..sliscy c8 Je°e® be cy r@rceatacr &
Beaver and Martin. As discussed above, Beaver relies on Martin,
and Martin directly relies on Kemmler. None of these cases
considered evidence of the effects of electrocution because the
litigants never proffered evidence. The litigarts' failure to
present this Court a complete record in those cases, however,
should not preclude Poyner from developing a record in this case
at an evidentiary hearing.

Moreover, no Virginia court has examined Virginia's new
procedures for applying multiple jolts of electricity to
prisoners. No court has reviewed evidence about Virginia's
electric chair -- either in Richmond or Greensville -- to
determine whether Virginia is unnecessarily torturing these
prisoners. Such evidence must be heard because this Court has
long said that the Virginia Bill of Rights prohibits “such bodily
punishments as involve torture and are inhumane.” Buck yv. Bell,
143 Va. 310, 319, 130 S.E. 516 (1925), aff'd, 274 U.S. 200
(1927).

Courts in other states have considered similar challenges
and taken evidence related to the functioning of a specific
electric chair, as opposed to electrocution generally. S¢¢
ay 742 F. Supp. 598 (S.D. Ala.), cert. denied, 497
U.S. 1042 (1990); Bitter vy. Smith, 568 F. Supp. 1499 (S.D. Ala.

1983), aff'd in relevant part, rev'd in part on other grounds,

726 F.2d 1505 (11th Cir.), cert. denied, 469 U.S. 869 (1984);

19

35°

MAR 17 °S3 10:39 HNP DIVISION
Buenoane vy. Dugger, No. 90-473-CIV-ORL-19, 1990 WL 119637 (M.D.
Pia. 29¢*. As t*@ecc 2eurts. “+ c20e°r’2e4, © MITZI NS 2B Foor. 2 ww
and its progeny do not prevent an action from proceeding where

the claim relates to the application of electricity in a specific

electric chair or in a unique manner.

c. Wo Federal Or State Court Has Considered Evidence Regarding
The Constitutionality Of Electrocution Since 1990,

Virginia is not alone in relying on the antiquated Kempler
9

opinion without the benefit of contemporary evidence. In
addition, federal case law continues to depend (almost as a

reflex) on Kemmler for upholding electrocution.*° Kemmler,

% Johnson v. State, 584 N.E.2d 1092 (Ind.) cert. denied, 113
S. Ct. 155 (1992); State v. Black, 815 S.W.2d 166 (Tenn. 1991);
, 580 So. 2d 11 (Ala. 1990) cert, denied, 112 Ss.
Ct. 176 (1991); Buenoano v. State, 565 So. 2d 309 (Fla. 1990);
, 772 S.W.2a 915 (Tenn. 1988) cert. denied, 493
U.S. 874 (1989); Godfrey y. Francis, 308 S.E.2d 806 (Ga. 1983),

cert. denied, 466 U.S. 945 (1984).

10 mcCleskey v. Kemp, 481 U.S. 279, 299 (1987) (dictum) ;
Rumme)_v. Estelle, 445 U.S. 263, 288 (1980) (Powell, J.,
dissenting); Ingraham y. Wright, 430 U.S. 651, 667 (1977);

, 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) ;

, 329 U.S. 459, 463 n.4 (1947);
817 F.2d 285, 298 (Sth Cir. 1987), aff'd,
484 U.S. 231 (1988) (incorporating the district court's opinion
at 671 F. Supp. 423 (E.D. La. 1987)); Wilson y. Butler, 813 F.2d
664, 678 (Sti Cir. 1987), , 484 U.S. 1079 (1988);
, 805 F.2d 930, 943 n.15 (lith Cir. 1986),
» 482 U.S. 918 (1987); Punchess v. Wainwright, 788
F.2d 1443, 1446 (1ith Cir.), cert. denied, 475 U.S. 1133 (1986);
Sullivan vy. Dugger, 721 F.2d 719, 720 (lith Cir. 1983);
Zant, 708 F.2d 549, 563 (lith Cir. 1983), cert. denied, 467 U.S.
1220 (1984); Spinkellink v. Wainwright, 578 F.2d 582, 616 (5th

Cir. 1978), cert. denied, 440 U.S. 976 (1979); Balph-v. Warden.
Maryland Penitentiary, 438 P.2d 786, 789 (4th Cir. 1970), cert.

denied, 408 U.S. 942 (1972) (dictum); Jackson v. Bishop, 404 F.2d
571, 577 (8th Cir. 1968).

20

356

P.66 :

—

MAR 17 ’93 10:39 HNP DIVISION P67

)

however, cannot preclude Poyner from raising his claim in a
Virginia court in 169%. The Yaw, sclertifis te mletae, ar?
society's sensibilities have evolved considerably over the last
one huni» *d years, casting serious doubt on the basic premises of
Kemmler. Nevertheless, the decision has inexplicably endured as
the basis for courts throughout the country to mechanistically
uphold electrocution, regardless of the particular method, as a
constitutional 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. In addition to its outmoded science, the
procedural history of Kemmler makes it even more surprising that
it has endured so long without critical analysis. Because of
courts’ persistent reliance on Kemmler, it is important to review

that decision in detail.

2. Facts Of In Re Kemmler

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 the United States Supreme Court in
Kemaier before any such executions were actually conducted in the

dvagir
United Thus, any evidence presented to the New York

a - :
Court on nope of execution by electrocution was
Te. ,
necessarily speculative.

she]

In Kemnler, the New York county court had reviewed, the

_*

evidence presented to a court~appointed referee and ruled thet it

did not overcome the presumption of the const itut ionality of «tS

21

3’)

MAR 17 °93 10:40 HNR DIVTSION P.68

legislation under the New York State Constitution (the Eighth

Azr.enizens no 2‘ 2
courts and United States Supreme Court deferred to the New York
legislature in Kemmler. More than twenty years ago, the Fourth
Circuit Court of Appeals vindicated the authority of courts to
review a legislature's decision generally, and specifically to
review a legislature's enactments regarding criminal punishment.
Ralph v. Warden, Maryland Penitentiary, 438 F.2d 786 (4th Cir.
1970), sexrt. denied, 408 U.S. 942 (1972). In Ralph, the State of
Maryland argued that capital punishment was a purely legislative
decision with which the judiciary should not interfere. The
Fourth Circuit rejected the State's argument: “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." Jd, at 788-89 (citing Bobinson vy. 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" that death by electrocution. was
r 1 in order to obtain relief. Kemmler, 136 0.8.
at 442.- » in today's jurisprudence, courte apply @
effects of electrocution did so in the 19th century. Moreover,
the Commonwealth's recent changes in its appliances and
procedures dictate at least a hearing to review the effects of
those changes. Poyner is simply trying to bring electrocution,
and the scrutiny thereof, into step with contemporary medical
science and “evolving standards of decency."

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. See, e.g., Exhibits 4, 8, 9, 10. 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 madical science has advanced exponentially over 100
years. The time has come to analyze the constitutionality of
pra ir using this modern body of ‘knowledge.

: e. decision on vhich all cases upholding
ye

‘as a constitutionally sound means of execution

nNee2

Virginia'

electr

‘ps 73
rely. Since that decision is flawed due to the outdated factual

determinations and legal principles, all of its progeny must
fall. This Court should-vacate the circuit court's ruline and

26

42

)

remand the case so that the trial court can review evidence
against the Greersvitie
Commonwealth's own internal operating procedures, from objective a

facts, and from qualified experts.
The trial court erred in denying Poyner an evidentiary
hearing to determine whether the Commonwealth is, in fact,

infiicting pain in an unnecessary and wenton fachion.
29

oy Lad

28

— ~ SE —

MAP 17 °S93 10:45 HAP DI\'TSION P.76

VIII. BEQUEST TO BE HEARD ORALLY IN PERSOW
Povner, Ev counsei, pursuant tc Rute & 5% ’e.. ressestr
requests to state the reasons in person to the Court why this

Petition should be granted.

SYVASKY L. POYNER

By

Alexander H. Slaughter (VSB No. 05916)
Dorothy C. Young (VSB No. 31155)
Shannon E. Sinclair (VSB No. 30588)

McGuire, Woods, Battle & Boothe

One James Center

901 East Cary Street

Richpond, Virginia 23219

(804) 775-1000
Lewis F. Powell, III (VSB No. 18266)
Harry M. Johnson, III (VSB No. 29144)
Sean P. McMullen (VSB No. 31478)

Hunton & Williams

Riverfront Plaza, East Tower

951 East Byrd Street

Richmwjond, Virginia 23219

(804) 788-8200

Willfam H. Wright, Jr. (VSB No. 25576)
719 West 33rd Street
Richmond, Virginia 23225
(804) 233-6666
Pp" Se.

30

+6

MAP 17 °93 10:44 He sm a P.77

VIRGINIA:

e : lta Jesprrowne Fo cecd of Arye nen 40d ae 44 hohe Fe Aon 4 Muckler y ae: bus

Cady of Rachanemd on Wwednescay l4a 10th ober y f Maren, i993.

Syvasky Lafayette Pruyner, Aspe lar

against Record No. 930301
Circuit Court No. F-4865-4

Commonwealth of Virginza, Appellee.

From the Circuit Court of the City of wWilliamssurg

and County of James City

Upon consideration of the record, t
and the argument in support of the granting o
has determined that there is no merit in appellant's claim that the
court below erred in refusing to conduct an evidentiary hearin
regarding the constitutionality of Virginia's present metnod cf

executing prisoners. Accordingly, the Court refuses the petiticn.

\ Copy,
Teste:

David B. Beach, Clerk
By: ei a Sw...

Deputy Clerk

4]

ad

: MAR 17 °93 10:44 HR ew p79

NO. 93-6052

».* >

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

SYVASKY LAFAYETTE POYNER
Vv.
EDWARD 8. MURRAY, Director,
Virginia Department of Corrections,
ELLIS B. WRIGHT, JR., Warden,

Greensville Correctional Center,
and JOHN DOE, Executioner

CON a: is, 1993)

APPLICATION FOR STAY OF EXECUTION

Alexander H. Slaughter (VSB No. 05916)
Dorothy cc. Young (VSB No. 31155)
Snannon E. Sinclair (VSB No. 30588)

McGuire, Woods, Battle & Boothe

One James Center

$01 East Cary Street

Richmond, Virginia 23219

(804) 775-1000

Lewis F. Powell, III (VSB No. 18266)
Harry M. Johnsen, EII (VSB No. 29144)
Sean P. McMullen (VSB No. 31478)

Hunton & Williams

Riverfront Plaza, East Tower

951 East Byrd Street

Richmwjond, Virginia 23219

(804) 788-8200

William H. Wright, Jr. (VSB Wo. 25576)
719 Weat Jird Street
Richmond, Virginia 23225
(804) 233-6646

Counsel for Syvasky Lafayette Poyner

48

)

Syvasky Lafayette Poyner, by counsel, and pursuant to Rule 3
of the Federal Pules of Anrellstts Prste ‘ure j.eie
appiication for a stay of his imminent execution, scheduled for
March 18, 1993. Poyner requests that this Court stay his
execution until such time as the United States Supreme Court nas
had the opportunity to decize on his Petition for writ of
Certiorari to the United States Court of Appeals for the
Circuit, filed on March 11, 1993.' Application to the United
States District Court for relief in this matter is not
practicable because of the previous disposition of this case by
this Court, which, upon receiving a Notice of Appeal of a
discovery order, issued an Order and Mandate requiring the
District Court to dismiss the entire lawsuit with prejudice.
Poyner is applying to this Court for relief because Rule 23 of
the Rules of the United States Supreme Court requires him to
exhaust his remedies below before the Supreme Court will

entertain a similar request.

I. Procedural) Bistory
In 1984, Poyner was convicted of five capital murders in the
Circuit Courts of Williamsburg and James City County, Hampton,

and Newport News. He was given five death sentences. The

Virginia Supreme Court affirmed Poyner’s convictions and
sentences in a consolidated appeal on April 26, 1985. (ner *
Commonwealth, 229 Va. 401, 329 S.E.2d 815 (1985). The United

States Supreme Court denied his petition for certiorari on

‘Exhibit 1.

+9

MAP 17 °S3 10:45 HNP DIVTSION

~ )

October 7, 1985. Poyner vy. Virginia, 474 U.S. 865 (1985) (2

cases: an} 474 0.3. 823 ~ 25) 2 ¢ar

Poyner filed petitions for a writ of habeas corpus in the
three state Circuit courts, and the petitions were dismissed in
May, 1987. On April 29, 1988, Poyner’s petitions for appeal of
the habeas decisions were refused by the Virginia Supreme Court.
(Record Nos. 870882, 270990, 870959). Poyner’s petition for a
writ of certiorari was denied by the United States Supreme Court
on October 3, 1988. Poyrer v. Bair, 488 U.S. 871 (1988).

In early 1989, Poyner simultaneously filed three petitions
for a writ of habeas corpus, in essence a single consolidated
petition, in the United States District Court, Eastern District
of Virginia. (C.A. NOS. 89=203-N, 89-204-N, 89-205-N). The
petitions were filed in the Richmond Division on January 12,
1989, and transferred to the Norfolk Division on March 15, 1989.
On October 11/ 1989, the Magistrate Judge recommended that the
petitions be dismissed and, on December 21, 1990, the District
Court dismissed the petitions. The dismissals were affirmed by
the United States Court of Appeals for the Fourth Circuit on May
8, 1992. Poyner v. Murray, 964 F.2d 1404 (4th Cir. 1992). On
November 2, 1992, the United States Supreme Court denied
certiorari review. Poyner vy. Murray, 113 S.Ct. 419 (1992).

On December 10, 1992, pursuant to 42 U.S.C. § 1983, Poyner
filed the lawsuit at issue here, a class action challeng.ag the

constitutionality of the Virginia electric chair, in the United

States District Court, Lastern District of Virginia (92 C.V.

450

P.80

MAR 17 °9D 10:45 1#f DIVTTION me.

)

g15).? On January 19, 1993, in response to a bare Notice of
Apreal relating to a discovery crder. the “rlted fes-0a5 ter ‘
Appeals for the Fourth Circuit, gua sponte, issued an Order arc
Mandate requiring the District Court to dismiss Poyner’s § 1933
action.’ The District Court did so on January 20, 1993.‘ On
February 2, 1993, Poyner submitted a Petition for Rehearing
Suggestion for Rehearing In Banc, ard Petition for Recall of
Mandate.’ This Court denied that Petition on Pebruary 17, 19923.°
Meanwhile, on January 21, 1993, the Circuit Court for the
City of Williamsburg and James City County scheduled Poyner’s
execution for March 18, 19923.’ Poyner petitioned the Virginia

Supreme Court for an appeal. That Petition was refused on March

10, 1993. (Record No. 930301).

On March 11, 1993, Poyner filed his Petition for Writ of
Certiorari to the United States Court of Appeals for the Fourth
Circuit, seeking review of the January 19, 1983 Order and Mandate

requiring the District Court to dismiss Poyner’s § 1983 lawsuit.

"Exhibit 2.
‘Exhibits 3 and 4.
‘Exhibit 5.
‘Exhibit 6.
‘Exhibit 7.
"Exhibit 8.

51]

Mee 17 °S3 10:4e He we Oe a ae ee

II. Fasts

SCevrer “as amassest 2 Sod Sf evidence croving that it
highly probab.e that a person subjected to intentional
electrocution in the Virginia electric chair is neither
instantaneously Kiiled nor rendered instantaneously “unconscious”
by the electric current arpliea to his bedy. Poyner’s experts
have explained in affidavits, and if given the opportunity will
testify, that the subject of intentional electrocution in
Virginia most likely suffers excruciating pain for an
indeterminate period of time as he waits to expire from
asphyxiation or ventricular fibrillation.'

As set forth in the Petition for Certiorari, the Fourth
Circuit thwarted Poyner’s attempt to present evidence on this
issue when, on appeal of a simple discovery order and without the
benefit of any briefs or arguments, it ordered the case to be
dismissed. 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

‘The Affidavits of Drs. Hillman, Devinsky, Ilgren, and Price
are attached hereto as Exhibits 9, 10, 11, and 12. The Court
will note that the affidavits of Drs. Ilgren and Price have been
redacted. The redacted material relates to autopsy reports which
are, for the time being, subject to a Protective Order preventing
their use in any proceeding outside of the criminal proceeding
Commonwealth vy, Curtis Eugene White, Circuit Court of Loudoun
County, Crim. No. 8129. Poyner hopes and expects that the
Protective Order will be lifted or modified early next week so
that he may present all of the evidence currently available to
him.

52.

MAR 17 '93 10:46 HNP DIVTSION pa

=)

)

consider directly the issue that was raised in the Notice of

nopet) © took the «+ :esacrd.rary - -
Court to dismiss Poyner’s lawsuit forthwith with prejudice. The
Fourth Circuit’s Mandate issued that sane evening. Poyner’s
subsequent Petition for Rehearing, Suggestion for Rehearing In

Banc, and Petition for Recall of the Mandate were den ed.

III. Basis for Granting the Stay

Petitioner Syvasky Lafayette Poyner is scheduled to be
executed in Virginia’s electric chair at 11:00 p.m. on Thursday,
March 18, 1993. Poyner has gathered proof that the method of
execution which he is scheduled to undergo wil
unconstitutionally deprive him of his right to be free of cruel
and unusual punishment, and a stay of execution pending
disposition of his Petition for Certiorari is therefore
necessary. Without a stay, he will soon be executed in a manner
that is not simply unnecessarily painful, but in fact a form of
torture.

While this case does not arise as a habeas corpus petition,
but as an action pursuant to 42 U.S.C. § 1983, Poyner will assume
for the purpose of this Application that the requirement that a
habeas petitioner present “substantial grounds upon which relief
might be granted" applies. Relo vy. Stokes, ___-«U-S- ___, 210
S.Ct. 1880, 1881 (1990); Barefoot vy, Esteoris, 462 U.S. 889, 895
(1983). As set forth in the Petition of Certiorari, Poyner has
established gross procedural error on the part of the Fourth

ar i=s _—-—-*

Circuit in treating a mere discovery order as am -") "cs.

5

53

MAR 17 °S3 10:47 HNR on x P.84
)

subject to review pursuant to 28 U.S.C. § 1292(a)(1), and in
eraneforsting it 2rto nm enportunity te cacse the case to ke
dismissed without a hearing. Moreover, the underlying claims
made in Poyner’s § 1983 Complaint are amply supported by
substantial evidence, as shown by the affidavits attached as
Exhibite hereto. Furthermore, as discussed just below, Poyner
has engaced in no actions that should be construed as abuse of
the writ. Cf, Barefoot vy. Estelle, 463 U.S. at 895.

The Commonwealth will attempt to argue that Poyner is
precluded by Gomez v.§ U.S, Dist. Court for the Northern District

of California, U.S. , 112 S.Ct. 1652 (1992) and McClesky
v._Zant, U.S. , 111 S.Ct. 1454 (1991) from raising this

claim at this time. The circumstances of this case, however,
differ in several salient respects from the activities that were
construed as abuse of the writ in Gomez and McClesky.

While in Gomez the § 1983 plaintiff had filed his Complaint
a mere four days before his scheduled execution, here, Poyner
filed his Complaint on December 10, 1992, some six weeks before
his execution date was set at a hearing held on January 21, 1993.
Therefore, the concern expressed by the Supreme Court in Gomez
with respect to the "obvious attempt at manipulation” is
inapplicable. See Gomez, 112 S.Ct. at 1653.

Moreover, with respect to the applicability of Meclesky
through the Gomez case, Poyner’s failure to raise this claim in
his single previous opportunity to seek federal habeas corpua

relief can be readily explained. His petitions were filed in

54

MAR 17 °93 10:47 HNP DIVTSION P.ss

early 1969. At that time, the electric chair was still in
Piermcrd, the setched «xecut.or3s sf Wiizert us Ls 2°
17, 1990) and Derick Lynn Peterson (August 22, 1991) had mot yet
occurred, the Greensville electric chair with its revamped wiring
did not yet exist, and the Commonwealth had not yet instituted
its policy of electrocutirg prisoners with two jolts because of
the likelihood that the first jolt would be insufficient ts kill
the condemned.® Thus, the “cause” prong of MeCjlesky, 111 S.Ct.
at 1470, is satisfied. The facts set forth in support of
Poyner’s Petition for a Writ of Certiorari and in the affidavits
that accompany this Application establisn the prejudice that

MeClesky also requires, and thus establish Poyner’s right to 4

hearing on the issue he has raised. Id.

Iv. Conclusjon
For the reasons set forth above, Poyner respectfully
requests that this Court grant his motion for a stay of execution

pending the decision of the United States Supreme Court on his

Petition for Writ of Certiorari.

Dated: March 12, 1993

RESPECTFULLY SUBMITTED,

Alexander H. Slaughter (VSB No. 05916)
Dorothy C. Young (VSB No. 31155)
Shannon E. Sinclair (VSB No. 30588)

McGuire, Woods, Battle & Boothe

One James Center

Richmond, Virginia 23219

(804) 775-1000

*Exhibit 13.

- FF . a , wrerTr
MAR 17 '@2 10:47 HNE DIVTCTON MAP 17 °93 10:46 HR [I'’SI0N >

P. 86 q

Lewis F. Powell, IiI (VSB No. 18266) NO. 93-6052

Harry M. Johnson, III (VSB No. 29144) a

seam ©. MoMullien ‘'YSGR No. 21472°
: inne

.

>

+ # . 3 * @

States District Court for tre Northern District of =ali?arnia, 6C

U.S.L.W. 3733 (1992) (per curiam).

While the complaints about the electric cheir at Greensville
could have heen raics:2 ct any tize since 2251 wien “he cPrtcr was
installed and were not, they are unproven and even if true are
based cn no factual prerise ich would show that the method of
Poyner's execution woild involve “cruelty irherert in the method of
pun:shment, not the necessary suffering involved in any method
employed to extingui:h life humanely." Lowisiar 4 ex rel. Francis
vy. Pesveber, 3259 U.S 455, 464 (1947).

It is accordi:igly ADJUDGED and ORDEREL trat the said
application for a stay of execution shall be, ard the same hereby
is, denied.

With the concurrences of Judge Wilkinson and Judge Sprouse.

States Circui udge
For the Court

~ »

ST

P. 30 Pp oi
.
a _ $6
— —_—— =
of which have been given, I thin t -
ae al . — . —- beam eres , gi sii, P« hi stim 4. ,.€e€4as%
UNITED STATES IST! I T COU .
a ee ‘ “——_-A * A _= orn *% **
: a : :
J out what 18S requested
Tr ~~, , ~ > = “ + - e
. ‘ iso Lia? -~2> a 2 : a a ~ « -
2 "It is adjudge and ordered tnat defendants are
& mancator é e av ~ he + 4 7 ~ =
> ald --
>Ourt’ revccrter ‘ pose Of Super r ~nare
-ase no
8 Bradshaw, both cof whom hall be permitted entry .nts tne
~wTirr ss _ e .
4 > - _ ~
“INIA, etc et ail. 3 execution cnamper of tr reensviiie Corr : na. enter at
etfencants . . “ r 4 — = , - fee ,
- ] -) r or mhursca, ecember .v or 2 300 tnerearver as
they ma arrive, 92 for the purpose of nse e J ana
le vVadeotaeping with audio the execution of Timothy sBuncr
13 | Further adjuageda and rdered that tt! executic be pertormed
: " £ ee , .
SRABLE ROBERT R. MERHIGE, JR
tec States Distr t juage ——— . —_— ie . -
a 7 — a, 14 with condemned prissoner ace visible dur ; ft executic
providing same is agreeable to the condemneca prisoner, wns
Snaii be asxec Oo state Als acquiescence r@.usa. et -
> - - > —_ Ld -+ _
L presence of tne alor entioned GilidSert | Halas2z .c is
’
December 10 1992 ' , ™ . , : aon ea
: 1s further adjudged and ordered that said cnaries Sradshaw tor
RIcCAmONG, Virginia
. ; . x ~~ . > at “or -~
19 the purpose of videotaping the execution be p.acec | 3
;
~ » . 7 - 5 . . o- amet’
U position whereby the camera Wouid be able TO Observe vs
TN PFW CHAMBER
WSIS OS Gee »7 Cn demn a me ner 4 are
i+ conc e > = \ ic > >
|
> ~ a ~~ > * ‘ ~ ~ + ,
23 There sna. be > videotaping or any pers Oth
a "rT ce? Qr ;
Wer Wu Frank Halas2 ; RI F an . . n ad . a cr ‘
~~ than ct ft con emnec + +-
MATAS? § HA! 3s“
-Our® Ressrter ,
P J. BOX 223
-, . a ‘rT? »-
r Licamond, vA -~~-—+ - a = > P “A

65

Db tether \) eon co t vo aA eer vw
- o.+ 6? o ’ + ie G ; 9
follows
L. My mame is £.B. lilgren; M.D. I am a neuropathologist
arc am currentiv a “erker of the Faculty of @ieiegy ard
Agricultural Scierces ard Subfaculty cf Bicchemisery, (mi versicy
of Oxford. I received ry M.D. from Hahnemann Medical University

in 1974. I was board certified in Anatomic Pathology by the
American College of Pathology in 1976. In 1982, I was certified

mn Neurcpatnology by the Royal College of Pathology in the United

Kingdon
3 I Rave been asked by the plaintiffs in Bovner vy.
Murray, ef 4)., to consult with them on the effects of

electricity on the human body.

3. I have reviewed the autopsy reports of Wilbert Lee
Evans anc Derrick L. Peterson prepared by the Medical Examiner
for the Commonweaith of Virginia. The reports do not provide
completé information on the effects of electricity on the bodies

OL people who have been executed in Virginia's electric chair.

4. To analyze of the effects of electricity on the human
body, it would be beneficial to observe the autopsy of the next
inmate executed in Virginia's electric chair.

$s. Determining the condition of the human brain following

an execution in Virginia's electric chair will provide

information regarding the effects of electrocution on the human

~-

66

MAF

17 °S> 12:51 HR DIVISION

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at
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)
7
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rule out abnormalities in tne cellular

$2
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a

Microscopic examination cf the brain sissue is recqui

out important cellular changes in the brain tissue.

Fe She f@l.Svirs FPOUCLNSG porcterarfsm enezninsticn .-
bracn in necessary to determine the condition cf the train
tissue:

a. The skull cap is removed in the usual fashion and the

brain is gently lifted from its bony vault after the brain
stem is transected with a scalpel at the base of the skull.

b. The brain is lowered whole and immersed in a vat
containing no less than six times its volume weignt cf 103%
firmalin.

C. A string is passed beneath the vessels of the circle of
Willis to suspend the brain, upside-down, within the vat.

da. The brain is thus fixed for no less than four weeks
whereupon it is examined in the routine way.

e. Examination includes weighing the whole brain and tnen
obtaining the individual weights and dimensions of the

cerebrum, brain stem and cerebellum.

tf. All three of the above are then carefully sectioned in
the coronial plane at the following intervals by means of a
hand-held knife: cerebrum, one-half inch; brainstem, one-
fourth to one-eighth inch; cerebellum, one-fourth inch.

g- The “coronal” slices are examined for gross
abnormalities and then the following standard blocks
inches x 2 inches) are taken bilaterally: A, . » jj Py 3 gi

Basal Ganglia; Thalamus; Hypothalamus; Pituitary ‘Gland;
Cerebellum, vermis and hemispheres; midbrain, pons, medulla
(upper, middle and lower).

h. The above sections are then embedded in paraffin wax
using routine methods, sectioned by microtome at 5-10

microns, and stained.

l. The sections t
liqnt micrescore ft9
gray and wnite matte

he mersRoloa:is::

produced are then exarines weiter a
th

apPe sy eo Ac
s

to

6’?

MAP 17 °S> 10:52 He ait r.S MHF 17? °S2 10: Me TV TON —_
U.S. Department of Justice a =
Office of Justice Program. (2am
Bureau Of Justice Statistics
8. The r@thod ef roet-mortenm examination of the brain set Bulletin
forth abeve is routine nevrorath*logizal examination te detect
celoyis® srregulercccesc in the Bratn.
sy J nishmen
A /}i,
A Pye 44 f , } & —
—l SS I LARGE De Z By Lawrence A Greenteic Status of tne death penalty, December 31, 1991
f? i ! : iS Y6a Vv fTyr 2 - Tua 7
Subscriped and svorrn tetore ne tenis / fT cay of canvary inat the U.S. Supreme Coun einen ies ee is 7 ane
Geain penalty, Those execuled during Ou S.ane GUNS = “2S
1993. 1991 had spent an average of 9 years and weneeast ~eigtanities 7 Mou
8 mormhs awaling execUion, about | year a - - ~ a ‘ 4 ae ~
ne 9 morane longer On average tnan tne Tow : Gracrp a aanenens
» Of ew Naw ¥ rx
5393S ic ,aT? LD SOe
Owing 1991, 265 prisoners were received . «oe Frade sia
My coszaseion expires ’ ~ —_ — by State prison systems and 1 prisons mon
NOTARAL BEM. Niered the Federal prison system under a a ne ty
4O86PH A REALE Notary Pubes SEmMAaNCE Of Gen from the courts During ~
P Lowe Menon Tup. Morigcmmery Co. ) the year, 106 persons had thew death “
fa : Mr cote, Somes Sec v2 rome | SEM*@Nce vacated, 2 nad their sentence a ee ee
: ‘ COMMULED, 1 [eCeived 4 CONditiona! pardor ve Nes
. o:= : by the governor, and 7 died while under ¢ | rh. niin titan Mie _ :
4 Per death sentence At yearend, 34 States anc | re eye ra ty Snmctahecinep me a ne a ae oe
aa na sI~reVS JeErera
OP PLL were availabie nad & prix felony satiation SO nat femMmovais of 4 Gealn sentence ae axe thus @ pape Surette
about 1 in 12 nad a prior homicide SRECUTIONS, ENS GING! CNANGSS iN Stat
cormwiction. About 2 in 5 concemned ale sySiematically followed The series
prisoners Nad & Criminal justice status at | also Wacks Changes in sta@iutes relating even © are ane M
ine ume of the capital offense. Hat otinese | ‘°° We!” PENalty ang major cases Owect
were on parole, the rest were in prison, on me
escape trom ofison, On probation, or hav x : "
cnarges pending agaist them. Neatly 15% The mac ty, 1 464 /§9 OF ‘ — _ > one "
of those sentenced to deain between 1668 senience of dean wore white G8? (39 Fy femaia an '
and 1991 had received 2 oF, more death gry Were Diack: 23 (0 9%) were Amencar =a needs hn
sermences it ndian, ang 13 (0 3%) were Asian mm, par % Nedian age al which tney Na ox
8 (164) accounted for 7 4% oftncse sentenced to daatn was 29 ve

semonce Trniny-tour (1 4°

Po

MAP 17 92 10:54 HP DIVTCION et

MP 17 "SS 10:52 HP CIV? TON F.O
/
EE LT TM .
SS — oe eee
Oregon — Ciaried the role of allernate CONVICTION and sentence, idaho, indiana, highest appellate coun. {1 ether the Prt >
jurors Guring the seniencing phase of a and Montana require review of the COMmviclion or the sentence is vacated, the 4“ te. an "
capta!l tual # a ivror wno was preset Guna sentence only. in idaho review of the case may be remanded t0 the tr'a! cous far ’ a.
me oO. " Chase Suratie to seve -e set Coe “9 40 o& thet ercngiad -+ 4- a: Cat) SAR OMe tine CF far anne ow.
- P. ¢ ° - o.s , + > - - ‘a
wasting the “issues” relevar’ to ne appro. c* the conwiction. Typictily the review 1s rese™tencing, the death semence may be 6 ee . % a Kf . Emaaces City County
priateness of the death penahy instivied undertaken regardiess of the defendants — remposed Vonatown Va 29630 ee eeaeraee
an automa ic Siay Ci execution the defen- wishes and is conducted by the State's ee MING anG Gudtn County
dant seeks a review from tne US Supreme , eee Contan 4A COMMONWEALTH OF VI R G | N | A ate”
Court, and enumerated new procedures to Table 2. Method of execution, by State, 1991 | Wiiiemseuae va 23187 nT satel o MiGQ. ESE 4 COniety
5e€ used On remand Guring @ resentencing - : (804) 220-4711 NINTS JUSICI AL TT noe nent county
proteed n3 rf preiud.cal error i¢ determure 4 wre wth Csectocvror 92 OS rown F “mere y¥i JOnN Me ves an “ee ‘ a
fh Pave “0° ren re ‘ | . PO Bx caz "+ ory pape? TY
a re Ankarce Alabams3 Arrona Montans* ia rn” Graeidstan Va 201 Nover ber 19, 19392 seacgs au
Cugoan™ Ankansa** Caine New marosne*? Udy" (060) 59-1336 ao’ ; 7
Utan — Cnanges tne term “first-secree Cuawere Connactcus Casas” Vv as tengton"
Murder 1 “agoraveted murder’ ana | gare” Pleida Maryland
enanges the term “second-ceagree Murcer” | tunes Georja Missssipp** ’ .
to “murder” and, in tne section describing | Wovisians In ane Missoun*
m ‘ Wy Miss So ° Kens Norn Carolina’ . ,
mrs Se oe actegnet A - - oor Mr. George C. Fairbar.ks, !\ Mr. Harry M. Johnson, Il
f iNGS, Ch sso ‘ seas
“muroer’ - ston cide * - Momana® io Commonwealth's Attorney Hunton and Williams
| Soe ‘ a P.O. Box 333 Riverfront Plaza, East Tower
New Hampstre* owe ssa i 92)R7 ,
Virginia — Adced murders resuhing trom ng sonny Williamsburg, Virginia 23187 951 E. Byrd Street Ns
toreible socomy or etlem pied forcidie New Maxico Richmond, Virginia 23219
sodomy to tne fisting of capita! murder North Caroline’ Mr. Alexander H. Slau ghter
circumstances a. Oklahoma Ms. Catherine N. Currin
—. . | McGuire, Woods, Battle & Boothe
Method of execution eer ee One James Center
=“ - ss fom ° Richmond, Virginia 23219
Al yearend 1991 jetnal imection (22 States) ’ ® ‘
Var
and electrocution (12 Siates) were Ine most Wash ‘
commen methods of execution autnsrized | Want ’ Re: Commonwealth v. Sy vasky Lafayette Poyner
(table 2) Six States authorized lethal gas. , Circuit Court for the City of Williamsburg and County of James City
twee Staies, hanging, anc two Siaies. a Note Federal executions afe to be carted out “Cokwado authorizes tathal gas tor Mose whose crimes File No. 4868-A
fwing squed. Nine States authorwed more accorawg to the metncc of Ine Slate inwhicn ey awe occurred before ten pm oot 9 fon those
red whdee Crimes Oclurred On Of afer! 7/1 ,
Than one Meinod — ieinai IM@CTION and an Authorizes 2 methods of «ecuion “Now Mamnpsnire authorites hanging only F lena Dea r Ms ‘ Currin and Gentlemen:
ahernetve mahes generally st the neatae GADAEeS tay ce a Nose whose SSS eas ,
‘ Capa NSE OCCUled _ fot Woee whose 6s Po author nyecton for those ° * . . .
Sectian of ine ear ramen praoner or otfense occ uried belure Ta! Gale Me condemned COMmicled afer 7/1/84: execuiion of those convicted I have received commu nications from Mr. Fairbanks and Ms. Toone , Assistant
baS00 ON the date of sentencing brmoner May select lethal myection oF electrocution ones to Chat cate & toe casind Gut wih Red Gas. Attorney General, indicating that they have no objection if I continue in the case for
Sune Seiten tee ens en cease the purpose of fixing the execution date; however, I have had no response from Ms.
to fetnal injection anticipating tnat 1 may be | Tabie 3. Minimum age authorized for capital punisnment, yearend 1991 Currin and Messrs. Slaughter and Johnson. Therefore, in order to prevent
Tound unconstiutional Eacn of the otner continued delay, | am recusing myself, and Judge John M. Folkes, of the Ninth
A tw & 4 2 s 2 . . . a . - ‘ 9 -™
four methods, previously challenged on age lesion ie Age 18 None specified Judicial Circuit, will sit in the matter. I request that each of you advise Judge
eighth amendment grounds as crue! and Alabama (16) | Celfernia artzone Folkes of your earliest available date for the hearing.
unusual punishment, has been found to be AMANOES (14) Comado Oeawae
constautional. The method of execution for nay ar a — Yours very truly,
Federal offenders 1S that of the State in Kentucky (16) Meryiand esennene / a
whch the execution takes piace Louse@ns(16) Neu asta Pennsyivans / Fs
Mississ ©: | 16) New Jersey Soun Carolina Vy / f
Missour (16 New Mexico Washington
CntennEtS CRD perenne Onw G. Duane Hollowa
New Hamosnwe (17 Oreqan , y
Of the 36 States with capita! punishment Monn Carobne (17) Temes see Judge
Stelules at yearend 1991, 34 provided tor So oa | Federay system
review of all Cea@h sentences regardiess Texas (17) GDH: mlw
of tne defendant's wishes. Arkansas nad Utah (14) cc: LS
c: The Honorable John M. Folkes
re ific prov Veeginia (16 “ne
SPOENS SFOAEONS TH? GUENS COviOw, Eee ote | ihe Honorable Rando!ph T. West

and Oro (ORD Sect.on 2329 G5. provides
to review by 'he Cour of Annezis art ene
Supreme Cou “vnen appeal The Fade-z
Oeain panaity crocedures 49 not orovide tre
automatic review ater e sentence of death

iS mposed. While most of ine 34 States
BUINON260 an aulomatic review of both tne

| ete Angas at ine ere cfihe « agial danse were

(Ndrcated by the Of ices Of If Slate anprne,s cenerai

“See AiKaneas COO AN S27 31H! 1, (Rem 19%))
“Seo Conn Gen Sut 5346-46419) (1)
“MiunumuM age Oehned Dy Statute & 15, bul oflective

age « 16 hater wm On eerpretetwm 41118 Supreme

Cat eOsrns by Me Cfste Money cosas (6
“Age requ ted & 17 uniens the murderet was

Ncw ated tur Murder whet & Subse went Ne er
SC ulied, Ne age inen may be 14

“age 10. Dut only after 8 ransie: hemring to Dy & |

70

The Honorable Nelson T. Overton

The Honorable Helene S. Ward, Clerk

Mr. Milton Brown, Deputy Attorney General .
Ms. Katherine B. Toone, Assistant Attorney Genera! -

’

TI

Me IP °S3 10°54 HMR DIV ETON ps

J +
Nene’fos ri
#340 "Ut gp
weet See JUOGES RETIRED
JUOGES

sous COMMONWEALTH or VIRGINIA S288,

YORKTOWN VA 226% WILLIAMSBURG VA 23185

904) 096-0073 NINTH JUDICIAL CIRCUIT RUSSELL M CARNEAL
WILLIAM PERSON JP Covars — pea aren agaletm
PO 6O» 4s» Cm eOLES CMe COUNTY © Matmcws C GuNts oon et lala
WILLIAMSB6LARG Va 7518? G.Ovci sree COunNTy MiOGLESE® COUKTY BOA) 2294 see
(804, 429-4715 Jamés Cite County NEw Ken” COuntTY JOHN E Denarn.?
a = Rony eno Guéen County Y¥Cha County PY Oxe
on FOLMES RinG Water Counter City OF POULOSON Se @uenaren VA "te!
Cc * 20. Cutw Gr Lira a ra
GLOUCESTER. vA 2368) tetas (004) 689-279)
(Ba, 665-1358
*
becember 38, 1992

Mr. George C. Fairbanks, IV Mr. Harry M. Johnson, III

Commonwealth's Attorney Hunton and Williems

P. O. Box 333 Riverfront Plaza, East Tower

Williamsburg, VA 23187 951 E. Byrd Street

Richmond, VA 23219 °

Mr. Alexander H. Slaughter RECEIVES

Ms. Catherine N. Currin
McGuire, Woods, Battle & Boothe p res
One James Center Cle or
Richmond, VA 23219 ® :
NN aT eee
Re: Commonwealth v. Syvasky Lafayette Poyner - File No. 4868-A
Circiut Court for the City of Williamsburg and James City
County

Dear Ms. Currin and Gentlemen:

Following Judge Holloway's letter to you Of November 19, :992, in
reference to the above captioned case, I expected to be provided
with your available dates. No communication has been forthcoming.
I suggest that you contact my secretary, Linda J. Mason, (804) 693-
1358, by December 21, 1992, with your available dates for a nearing
in Williamsburg for the purpose of fixing the date of executior.
If the Court does not recieve your dates by December el, 1992, it
will be necessary for the Court to proceed sua sponte, 1.e., you

will be notified of the hearing dated selected by the Court.

12

MAP 17 °93 10:55 ME DIVTSION

vn

h’ rc ' 1 - 4 « CF. +
Mr. Harry M. Johnson, III

Mr. Alexander H. Slaughter

Ms. Catherine N. Currin

Page Two

December 8, 1992

Would you kindly attend to this matter fort‘with. Thark you very
much.

Folkes, Judge

IMF: lm

CC: The Honorable Randolph T. West
The Honorable Nelson T. Overton
The Honorable Helene S. Ward, Clerk
Mr. Milton Brown, Deputy Attorney General
Ms. Katherine B. Toone, Assistant Attorney General.
Mr. Richard 8. Smith, Assistant Attorney General

13

0 nen

Mm 1” °SS 10:55 we SIV!’ IN Pid MAP 17 °SS 10:55 HR Div’-*ON a

'WEALTH OF YJ
cGo* MMON aia wie vi IRGINt, VIRGINIA:

_

mmoenea * 4
paTwick f KELLE’
Aw! Commun ealir Atom

aceaCle& Mic

“14 Wehsmnstauta \ tgmoa 281m" AND JAMES CIT“ COUNTY

ras @ trues Joi WINS -_--_ = — —_ EE — eee

At Gammsonueal!® Ain mne, COMMONWEALTH OF VIRGINIA :
oO NYMA*S ‘ane fy te 4% r sy .
Pm. No oa FEC ah tes yore ys RECEIVED ‘ .
OFC 21 1992
SYVASKY L. POYNER :
December 21, 1992 :
OERUTK ATEOREYGEERS i eee ee eH eK ,
Mr. Alexander H. Slaughter MOTION FOR CONTINUANCE
Ms. . Currin
oe maga ow hy not fe & Boothe Syvasky Lafayette Poyner, by counsel, respectfully
hme + ar enese moves this Court to continue the date scheduled for a hearing to
,
set his e i ate.
Mr. Harry M. Johnson, III 38 eusewisen ¢
va coc Bw gg fase In support of this motion counsel states:
;
951 E. Byrd Street a. This Court has scheduled a hearing on January 21,

Richmond, Virginia 23219

1993 to set Mr. Poyner's execution date.
RE: Commonwealth v. Syvasky Lafayette Poyner

File No. 4868-A Circuit Court for the 2. On December 10, 1992, Mr. Poyner, on behalf of
City of Williamsburg and James City County
himself and all others similarly situated, filed a Complaint in
Dear Ms. Currin and Gentlemen;
the United States District Court for the Eastern District of
Following Judge Folkes’ letter to you of December 8, 1992, and

your response of December 16, 1992 coupled with a transmittal of
your available dates, Judge Folkes has selected the date of January Virginia Department of Corrections, Ellis B. Wright, Jr., Warden,
21, 1993 at 11:00 a.m. for the purpose of setting an execution date
in the above referenced matter in the Circuit Court of the City of
Williamsburg and County of James City, Virginia. A transportation
order has been prepared providing for Mr. Poyner’s presence on the 42 U.S.C. § 1983 with respecte tc the unconetituticrs: ercceture

Virginia, Richmond Division, against Edward W. Murray, Director,

Greensville Correctional Center, and John Doe, Executioner,

seeking permanent injunctive and declaratory relief pursuant to

above referenced trial date. Thank you for your cooperation in and means utilized py the defendants and prescribed by the law of
these matters.

the Commonwealth of Virginia for executing prisoners in Virginia.
Very truly yours,

Leedae CF curbayin cr a

George C. Fairbanks, IV.
Commonwealth Attorney

GCFIV/epm er "57

See Corrliaint, Civil Action No. 92-CV-815, Exh. A.

O:S6 HE DIVT TON P.¢

~—

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ip
tat
--

3. Mr. Poyner's § 1983 lawsuit centers on an issue of

a - «A . = a -_-
~

en ane
— —

+

Commonwealth of Yirginia is executing prisoners in a cruel and
unusual manrer in violation cf the Eighth Amendmert to the United
States Constitution. As the Attorney General's Office itself has
noted in a Motion fcr Er-liarcenent 185° HNP DIVe ron P.10

requests that this Court set an execution date Sufficiently far
in he FuruYe as 0 er a*"%n Ve Mmseen~ . + ‘ ern - @.s% 9 =m? e © ws

trial on tne werits with regard to the -m™portant constitutional

questions raised in his federal lawsuit.

Respectfully submitted,
SYVASKY L. POYNER

~

aes, > ; oN
By ween ay yt as -— a
Of Lounsel /
a “Wile cael

Alexander H. Slaughter
Virginia State Bar No.: 05916
Dorothy C. Young

Virginia State Bar No.: 31155
Shannon E. Sinclair

Virginia State Bar No.: 305388
MCGUIRE, WOODS, BATTLE & BOOTHE
One James Center

901 East Cary Street

Richmond, Virginia 23218
(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

Richmond, Virginia 23219
(804) 788-8200

ATTORNEYS FOR THE PLAINTIFF

80

j
THC) COURT

RICHMOND, VA

UN:

Li

MAR 17

’93 10:58 HNP DIV*’~*ON P11

| ! JAN ~ 8 jQq0

UNTTED STATES Sr57T..Ct ae
FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

CIVIL ACTION NO. 2 “122./1 {

COMMONWEALTH OF VIRGINIA,
EDWARD W. MURRAY, Director,
Virginia Department of Correcuons,

D.R. LAWSON, Acting Warden, Greenville
Correcuonal Center,

MARY SUE TERRY, Attorney General

of Virginia, and

JOHN DOE, Execuuoner,

ee

Defendants.

PETITION FOR DECLARATORY RELIEF, AND

Herbert R. Bassette, Jr. ("Bassette”), by counsel, for his bill of complaint for
declaratory relief and a temporary and permanent injunction against Edward W. Murray.
Director of Virginia Department of Corrections ("Murray"), D.R. Lawson, Acung Warden
Greenville Correctional Center ("Lawson"), Mary Sue Terry, Attorney General of Virginia
("Terry") and John Doe, Executioner ("Doe") states as follows:

JURISDICTION

(1) This is an action, pursuant to 42 U.S.C. § 1983, to redress the imminent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0428%3A4. Public record. Not legal advice.