Petition for Writ of Certiorari — Lackey v. Texas

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

vo, QU FAGL

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

CLARENCE ALLEN LACKEY

Petitioner,

STATE OF TEXAS

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE TEXAS COURT OF CRIMINAL APPEALS

THIS IS A CAPITAL CASE:

MR. LACKEY IS CURRENTLY SCHEDULED TO BE EXECUTED

ON MARCH 6, 1995, SHORTLY AFTER 12:01 a.m.

* Robert C. Owen

Brent E. Newton

3223 Smith Street, Ste. 215

Houston, Texas 77006

(713) 522-5917

fax: (713) 522-2733

* Counsel of Record

Member, Supreme Court Bar

RECEIVED

FEB 2 7 1995

Urrile UF ime CLERK

SUPREME COURT, U.S.

QUESTION PRESENTED

Petitioner was indicted for capital murder in mid-1977. As

a result of two mandatory appeals in state court, Texas did

not cbtain a final conviction and schedule Petitioner’s

execution until fifteen years later. Since that point, in

mid-1992, Petitioner has expeditiously pursued state and

federal habeas corpus proceedings; over that same span, the

state courts have issued four death warrants for Petitioner.

Under English common law, the execution of a death

sentence under such circumstances would constitute

cruel and unusual punishment. See Riley v. Attorney

General of Jamaica, 1 AC 719, 3 All ER 469 (Privy

Council 1983) (Lord Scarman, dissenting, joined by Lord

Brightman) (arguing that “execution after inordinate

delay would [{infringe]) the prohibition against cruel

and unusual punishment [in] Section 10 of the Bill of

Rights of 1689...."), majority opinion overruled by

Pratt & Morgan v. Attorney General of Jamaica, 2 AC l,

4 All ER 769 (Privy Council 1993) (en banc); see also

Pratt & Morgan.

Given these circumstances, this petition presents the

following question:

Whether the execution of a death sentence

constitutes cruel and unusual punishment

under the Eighth Amendment as intended by the

Framers if, as a result of inordinate delay

not attributable to his own conduct, the

condemned is forced to endure nearly two

decades on death row, during which time his

execution is repeatedly rescheduled.

TABLE OF CONTENTS

QUESTIONS PRESENTED eeeeoevoeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeser ii

wees GE EGE COED cccccceccccceccceceeee cocccccccccccsccce SA

GEM EGe BEE cccccccccccceccccecesceces

eoeeeoeeveeeeeeeeeeeeeeeeeee 1

JURISDICTION eoeneernieeeeeeeeeeeeeeeeeeeeee

eevee eeeeeeeeeeeeeeeeeeee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............. 1

STATEMENT OF THE CASE ...cccccccccces eeeces ee ee

REASONS FOR GRANTING CERTIORARI ............ eeccccces coeccscese 8

CONCLUSION ..cccccccccccces Ccoeresocececscseesecss ceoccccscccses 29

iii

TABLE OF AUTHORITIES

CASES

Adams v. Texas, 448 U.S. 38 (1980) ° ° . .

Attorney General, No., S.C. 73 (Zimb. June 24, 1993)

Coker v. Georgia, 433 U.S. 584 (1977) .

Coleman v. Balkcom, 451 U.S. 949 (1981) . . .

Commonwealth v, O’Neal, 339 N.E.2d 676 (Mass. 1975)

Enmund v. Florida, 458 U.S. 782 (1982)

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

Fisher v. United States, 328 U.S. 463 (1946)

Ford v. Wainwright, 477 U.S. 399 (1986)

Furman v. Georgia, 408 U.S. 238 (1972)

Gregg v. Georgia, 428 U.S. 153 (1976)

Harmelin v. Michigan, 501 U.S. 957 (1991)

Hopkinson v. State, 632 P.2d 79 (Wyo. 1981)

Hudson v. McMillan, 112 U.S. 995 (1992)

Jurek v. Texas, 428 U.S. 262 (1976)

Kilbourn v. Thompson, 103 U.S. 168 (1881)

Kyles v. Whitley, 498 U.S. 931, 111 S. Ct. 333 (1991)

Lackey v. Collins, No. MO-92-CA-181

, 28 F.3d 486 (5th Cir. 1994), cert. denied,

115 S. Ct. 743 (Jan. 9, 1995) . : . ° °

Lackey v. State, 638 S.W.2d 439 (Tex.Crim.App. 1982)

Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App. 1989)

, Writ No. 24,267-01 (Tex.Crim.App. Dec. 16,

1992), cert, denied, Lackey v. Texas, 113 S. Ct. 1319

(1993) . ‘ ; ; . ; ; ; , : :

Penry v. Lynaugh, 492 U.S. 302 (1989)

1l,

20,

12,

21,

PAGE

27,

People v. Anderson, 493 P.2d 880, 6 Cal. 3d 628 (Cal. 1972) . 12

, 494 U.S. 1015 (1990), later proceeding,

498 U.S. 38 (1991) . : : , ‘ : : ; ; ‘ » 2 | IN THE SUPREME COURT OF THE UNITED STATES

No.

, Privy Council

Appeal No. 10 . . . . : . ° . . . . passim

Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990). . ° ° 11

Riley v. Attorney General of Jamaica, 1 AC 719, 3 All ER 469 . 9, 18

Robinson v. California, 370 U.S. 660 (1962) . , , , . 2

Sawyer v. Whitley, 112 S. Ct. 2514 (1992) . ° ° ; ° ° 27

Sher Singh et al. v. The State of Punjab, 2 S.C.R. 582. . 13

Smith v. Aldingers, 999 F.3d 109, 110 n.4 (5th Cir. 1993) . . 25

Soering v. United Kingdom, 11 Eur. Hum. Rts. Rep. 439 (1989) . 13

Solesbee v. Balkcom, 339 U.S. 9 (1950) ; , ; ; j . 12

Stankorsy. Kentucky, 492 U.S. 361 (1969) . ; ; ; , ‘ ” | issue a Writ of Certiorari to review the judgment of the Texas

State ex. rel. Francis v. Resweber, 329 U.S. 459 (1947) : 23, 28 |

State v. Richmond, 886 P.2d 1329, 1994 WL 699008 (Ariz. Dec.

October Term, 1994

CLARENCE ALLEN LACKEY,

Petitioner,

Vv.

STATE OF TEXAS

| Respondent.

Petitioner Clarence Lackey prays that this Honorable Court

Court of Criminal Appeals in his case.

15, 1994) .. i a ee > “Soe CITATION TO OPINION BELOW

State v. Ross, 646 A.2d 1318 (Conn. 1994) . " . . P . 13 Copies of the order of both the Texas Court of Criminal

Suffolk County District Attorney v. Watson, 411 N.E.2d 1274 12, 13 Appeals and the state habeas trial court denying habeas corpus

Teague v. Lane, 489 U.S. 288 (1989) . 4 . P , , 28 relief will be forwarded to this Court as soon as they are

Trop v. Dulles, 356 U.S. 86 (1958) , ‘ ‘ . ? 21, 22, issued. They are unavailable as of the time that this petition

is being lodged with the Court.

United States v. Raddatz, 447 U.S. 667 (1980) . ° ° ° ; 19

JURISDICTION

, 2 S.C.R. 348, 353

(India 1983) . . P . . P ; . 4 ——— Mr. Lackey invokes this Court’s jurisdiction pursuant to 28

Weems v. United States, 217 U.S. 349 (1910) ° , ° ° - 21 U.S.C. § 1257.

STATUTES CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1257 . P “ A . ‘ - . . 1 The issues raised in this petition implicate the “cruel and

Tex. Code Crim. Pro. Art. 37.071(f) (Vernon 1974) . , r .. unusual punishments" clause of the Eighth Amendment and the Due

Vv Process Clause of the Fourteenth Amendment to the United States

Constitution. Those provisions read in pertinent part as

follows:

U.Ss. CONST.

Amendment VIII

"Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted."

Amendment XIV

"... [NJor shall any State deprive any person of life,

liberty, or property, without due process of law... "

STATEMENT OF THE CASE

The State of Texas alleged by indictment that Mr. Lackey

committed the capital murder of Diane Kumph on or around July 31,

1977. Mr. Lackey was arrested immediately thereafter and charged

with capital murder; he has remained in custody during the

ensuing eighteen years.

Mr. Lackey was originally tried in the 238th District Court

of Midland County, Texas, on a change of venue from Lubbock

County in the spring of 1978. At that trial, he was convicted of

capital murder and sentenced to death. His case was then pending

on an automatic direct appeal’ to the Texas Court of Criminal

Appeals for over four years. On September 15, 1982, that court

reversed Petitioner’s conviction and sentence on the authority of

' The post-Furman Texas capital sentencing statute provides

for a mandatory, automatic direct ap>»eal to the Texas Court of

++ rome Appeals. See Tex. Cope Crim. Pro. Art. 37.071(f) (Vernon

Adams v. Texas, 448 U.S. 38 (1980). Lackey v. State, 638 S.W.2d

439, 471-76 (Tex.Crim.App. 1982).

The case was remanded to the trial court, and Mr. Lackey

was retried. He was again convicted of capital murder and

sentenced to death in April 1983. Another automatic appeal to

the Court of Criminal Appeals ensued. After deliberating over

Mr. Lackey’s second direct appeal for a total of eight years, the

Court of Criminal Appeals -- with four judges dissenting --

ultimately affirmed Mr. Lackey’s conviction and sentence both on

original submission and on rehearing. See Lackey v. State, 819

$.W.2d 111 (Tex.Crim.App. 1989); id. at 128-41 (Tex.Crim.App.

1991) (on rehearing). Because no petition for certiorari was

filed, Mr. Lackey’s conviction and sentence became final ninety-

days thereafter in August 1991, when the time for filing a

certiorari petition passed.* Thus, it took the State of Texas

from mid-1977 until mid-1991 -- a period of fourteen years from

the time of Mr. Lackey’s arrest -- to secure a final conviction

in Mr. Lackey’s case.” The state trial court subsequently

2 In Penry v. Lynaugh, 492 U.S. 302 (1989), this Court

defined “finality” as being the date of the denial of a direct

appeal certiorari petition or, if no certiorari petition is

filed, 90 days from the date that .inal judgment is entered by

the state appellate court on direct appeal.

3 On federal habeas corpus review, the district court was

highly critical of the unusually protracted nature of the state

court proceedings. See Lackey v. Collins, No. MO-92-CA-181,

memorandum order and opinion, at 4 n.1 (W.D. Tex. June 11, 1993)

(noting that it took 16 years for the case to go from Lackey’s

arrest to federal habeas corpus review). As discussed infra,

such criticism is appropriately directed at the Texas courts --

and not Petitioner -- since fourteen of those sixteen years were

(continued...)

scheduled Mr. Lackey’s first execution date to occur on July 17,

1992 -- 15 years from the date of the capital murder.

Only from that point in 1992, when Mr. Lackey filed his

first discretionary habeas corpus appeal and sought a stay of

execution, can it be said that he was in any way “responsible”

for any subsequent delay. From 1992 until January 1995 -- a

period of less than three years -- Mr. Lackey litigated his state

and federal habeas corpus appeals. See Ex Parte Lackey, Writ No.

24,267-01 (Tex.Crim.App. Dec. 16, 1992), cert. denied Lackey v.

Texas, 113 S. Ct. 1319 (1993); Lackey v. Collins, memorandum

opinion and order, No. MO-92-181 (W.D. Tex. June 11, 1993), aff’d

Lackey v. Scott, 28 F.3d 486 (5th Cir. 1994), cert. denied, 115

S. Ct. 743 (Jan. 9, 1995).*

While Mr. Lackey litigated his state habeas corpus appeals

3(...continued)

spent on criminal proceedings that were non-discretionary in

terms of Mr. Lackey’s wishes.

*“ The many claims raised on habeas review -- including

various challenges to the capital sentencing instructions at

trial -- involved quite substantial issues. Indeed, four members

of the Texas Court of Criminal Appeals believed that one or more

of those claims entitled Mr. Lackey to a new trial. See Lackey

vy. State, 819 S.W.2d 111, 122-23 (Tex.Crim.App. 1991) (Clinton,

J., dissenting); id. at 128 (Miller, J., dissenting); id. at 136-

39 (Clinton, J., dissenting from denial of appellant’s motion for

rehearing, joined by Maloney, J.); id. at 139-41 (Baird, J.,

dissenting from denial of appellant’s motion for rehearing). In

addition, the federal district court felt compelled to conduct an

evidentiary hearing, see Lackey v. Collins, No. MO-92-CA-181

memorandum opinion and order, at 1 (W.D. Tex. June 11, 1993),

which is further evidence of the substantial nature of the claims

raised on habeas review. Mann v. Scott, 41 F.3d 968, 985 n.

13 (Sth Cir. 1994) ("(T)he holding of an evidentiary hearing is

the exception, not the rule. In 1988, for example, only 1.11

percent of all (federal) habeas petitions obtained a full

evidentiary hearing.") (citation omitted).

in 1992, the state courts set three separate execution dates --

the first for July 17, 1992; the second for October 17, 1992; and

the third for December 17, 1992. See Lackey v. Collins, supra,

memorandum opinion and order, at 3. The first two dates were

stayed by the state trial court. The third execution date was

stayed by the federal district court late in the day on December

16, 1992, within hours of the execution scheduled to occur on

December 17th at 12:01 a.m. A fourth execution date was

scheduled shortly after this Court denied Mr. Lackey’s federal

habeas certiorari petition on January 9, 1995. That execution

date is presently pending.

Both the sheer length of time Clarence Lackey has spent on

Texas’ death row, nearly two decades, and the repeated execution

dates that have been scheduled in this case have caused him a

tremendous amount of psychological anguish and pain. The

sustained stress and anxiety that Mr. Lackey has been subjected

to while on death row -- to date, waiting nearly as much time to

die as he had spent on the earth at the time that he was arrested

on capital murder charges in 1977° -- have taken an extreme toll

on Mr. Lackey’s spiritual well-being and mental health. See

Affidavit of Clarence Lackey (Appendix A); Affidavit of Josette

Tilling (Appendix B). As Mr. Lackey has stated in a recent

affidavit:

4. The many years that I have spent on death row have

been filled with severe stress, depression, and

5 Mr. Lackey was 22 years old when he was arrested.

Appendix A, 4% 4-7.

anxiety. The experience of the third

execution date was the most traumatic for me.

I came within a matter of hours of being

executed before that third execution date was

stayed by a federal court. After the third

date was stayed, I became very ill --

emotionally and physically -- as a result of

that traumatic experience.

Being on death row so long has been an emotional roller

coaster for me. There have been times when I’ve had

great hope that I would win a new trial or have my

death sentence commuted. But there have also been

countless times when I have believed that the State was

actually going to kill me. Preparing for death is a

draining experience, both emotionally and spiritually.

It should be something that a person has to do only

once in a lifetime. I have had to do that many times

since being on death row during these many years. I’ve

also had to watch my loved ones experience similar

pain.

Death row is one of the loneliest, most miserable

places on the earth. It is not only miserable

because you know the state is planning on killing

you, but also because you see the state killing

other human beings around you. There have been

approximately 90 executions in Texas since I’ve

been here. My inmate identification number is

591. The guys that they’re bringing to death row

now have their inmate identification numbers in

the 1100s. A lot of time has passed, almost two

decades, since I’ve been here. I was a young man

when I was arrested. Now I’m approaching my

middle aged years.

There have been countless times that I have been

unable to eat or sleep because of the never-ending

stress that I have felt during my lengthy time on

death row. Depression and anxiety always follows

‘you around. You never seem to be able to escape

it here. I regularly have had nightmares. I have

them almost every night when I have had an

execution date pending.

REASONS WHY CERTIORARI SHOULD BE GRANTED

THE EXECUTION OF A DEATH SENTENCE AFTER KEEPING THE

CONDEMNED ON DEATH ROW FOR ALMOST TWO DECADES -- DURING

WHICH TIME REPEATED, UNNECESSARY EXECUTION DATES WERE

SCHEDULED -- PARTICULARLY WHEN THE DELAY IS LARGELY

ATTRIBUTABLE TO THE STATE RATHER THAN THE INMATE ~--~-

CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION

OF THE EIGHTH AMENDMENT.

* "“Wasn’t the real delay here much before the

[habeas corpus appeal)? - What accounts for

that length of time just on ... the direct

appeal [which] took so long -- 3 years. ...

Well, I must say that that’s -- it’s hard to

expect Federal judges or any judges to get

excited about staying a Texas execution when

Texas itself diddles arcund for 3 or 4 years

e° If you want us to get serious, you

should get serious yourselves.”®

* "There is an instinctive revulsion against

the prospect of [executing] a man after he

has been held under sentence of death for

many years. What gives rise to this

instinctive revulsion? The answer can only

be our humanity; we regard it as an inhuman

act to keep a man facing the agony of

execution over a long, extended period of

time.’

¢ Remarks of Justice Scalia to Margaret P. Griffey, |

assistant attorney general of Texas, during oral arguments in

, No. 93-6497 (March 29, 1994), quoted in

Official Transcript [of) Proceedings before the Supreme Court of

the United States, McFarland v. Scott, at pp. 35-37 (Anderson

Reporting Co.).

’ Pratt & Morgan v. Attorney General of Jamaica, Privy

Council Appeal No. 10 of 1993, slip op., at 16, reported at 3 WLR

995, 143 NLJ 1679, 2 AC 1, 4 All ER 769 (British Privy Council |

Nov. 2, 1993) (en banc) (available on LEXIS). A copy of the slip

opinion in Pratt & Morgan is attached hereto as Appendix C.

* “(Tjhere is a formidable case for suggesting

that execution after inordinate delay would

have infringed the prohibition against cruel

and unusual punishment to be found in Section

10 of the Bill of Rights of 1689...."®

A. Introduction

The execution of a prisoner pursuant to a constitutionally-

obtained judgment is not cruel and unusual punishment per se

under the Eighth and Fourteenth Amendments to the United States

Constitution. See, e.g., Jurek v. Texas, 428 U.S. 262 (1976).

However, it has long been recognized that while the death penalty

itself may not be a cruel and unusual punishment, the manner of

its imposition may violate the Eighth Amendment depending on the

circumstances.

Because of the unusual circumstances surrounding the

State’s attempt to implement capital punishment in this case, the

State of Texas has forfeited its right to execute Clarence Lackey

under the Eighth and Fourteenth Amendments. This forfeiture has

resulted both from the inordinate amount of time that Mr. Lackey

has spent on Texas’ death row and the States’ unnecessary setting

of repeated execution dates in this case.’ Largely the result of

. Riley v. Attorney General of Jamaica, 1 AC 719, 3 All ER

469 (Privy Council 1983) (Lord Scarman, dissenting, joined by

Lord Brightman), j

Attorney General of Jamaica

, 2 AC 1, 4 All ER 769 (Privy Council

1993) (en banc).

* The first three execution dates scheduled in this case

were set by the Texas trial court solely in order to force Mr.

Lackey to initiate his habeas corpus appeals in state and federal

court. It is widely understood by members of the bench and bar

in Texas -- although not understood by death row inmates facing

such execution dates -- that in the overwhelming majority of

(continued...)

unnecessary delays by the Texas courts in hearing Mr. Lackey’s

two mandatory, automatic direct appeals, Mr. Lackey has been

required to spend almost two decades on death row. Had Mr.

Lackey been sentenced to “life” imprisonment at trial -- which

was the only alternative to the death penalty upon a conviction

of capital murder -- he would have been eligible for parole in

mid-1987."°

As explained above, Mr. Lackey’s death sentence was

originally imposed in 1978 following his 1977 arrest. The Texas

Court of Criminal Appeals took over four years to render a

9(...continued)

Texas capital cases, such premature execution dates will not

result in an actual execution. Judge Edith Jones of the U.S.

Court of Appeals for the Fifth Circuit has noted this largely

peculiar Texas practice of setting premature execution dates

solely to force the immediate filing of habeas corpus appeals by

death row inmates. See Hon. Edith Jones, Death Penalty

Procedures: A Proposal for Reform, 53 Tex. BaR J. 850, 851 (1990)

(referring to the practice as "{d]jocket control by execution

date"); see also Mark Ballard, Death Penalty System Ridiculed,

TEXAS LAWYER, May 11, 1992, at 4 (quoting Fifth Circuit Judge

Thomas Reavley’s criticism of Texas’ system of "jump-starting"

habeas corpus appeals by setting premature execution dates).

Petitioner does not dispute that the state has a legitimate

interest in seeing that habeas corpus appeals are pursued

efficiently by death row inmates; however, considerably less

cruel methods are available to assure that habeas corpus appeals

are pursued by death row inmates in an efficient manner than

Texas’ preferred method of setting execution dates. For

instance, Texas could enact a reasonable statute of limitations

requiring habeas appeals to be filed within a specified period of

time. Trial courts could also informally set filing deadlines,

which could be enforced with the threat of setting an execution

date in the event that such appeals were not timely filed.

1979) (capital murder defendant sentenced to "life" eligible for

parole after 20 flat calendar years from time that he is taken

into custody).

decision on Mr. Lackey’s first automatic, mandatory direct

appeal. Mr. Lackey’s death sentence was re-imposed after a re-

trial in early 1983. It then took another eight years for the

Texas Court of Criminal Appeals to finally resolve Mr. Lackey’s

“second mandatory direct appeal in 1991. Mr. Lackey’s conviction

thus became final 14 years after he was indicted for capital

murder. Mr. Lackey exhausted his first round of state and

federal habeas corpus appeals in less than three years. Thus,

only a fraction of the total time that Mr. Lackey has spent on

death row is attributable to the delay occasioned by the filing

discretionary appeals that he has initiated.

In this regard, Mr. Lackey’s case should be contrasted with

other long-time residents of death row, whose delay between trial

and execution of a death sentence is largely a function of the

inmates’ decisions to pursue discretionary appeals. See, e.g.,

Richmond v. Lewis, 948 F.2d 1473, 1491 (9th Cir. 1990) (rejecting

superficially similar claim of a 16-year resident of Arizona’s

death row, whose discretionary habeas corpus appeals were

responsible for the vast majority of the time he had spent on

death row).

B. The "Death Row Phenomenon" as Unconstitutional

Torture

The torturous effects of the “death row phenomenon" -- that

is, the psychologically devastating effects of a lengthy stay on

death row -- have been widely noted by jurists during the last

three decades. See, e.g., Coleman v. Balkcom, 451 U.S. 949, 952

(1981) (Stevens, J., concurring in the denial of certiorari)

(recognizing that the mental pain suffered by a condemned

prisoner awaiting execution "is [a] significant form of

punishment" that “may well be comparable to the consequences of

the ultimate step itself {i.e., the actual execution)"); Solesbee

v. Balkcom, 339 U.S. 9, 14 (1950) (Frankfurter, J., dissenting)

("In the history of murder, the onset of insanity while awaiting

execution of a death sentence is not a rare phenomenon.");

Furman v. Georgia, 408 U.S. 238, 288-89 (1972) (Brennan, .

concurring) ("(WJe know that mental pain is an inseparable part

of our practice of punishing criminals by death, for the prospect

of pending execution exacts a frightful toll during the

inevitable long wait between the imposition of sentence and the

actual infliction of death."); People v. Anderson, 493 P.2d 880,

6 Cal.3d 628, 649 (Cal. 1972) ("The cruelty of capital punishment

lies not only in the execution itself and the pain incident

thereto, but also in the dehumanizing effects of the lengthy

imprisonment prior to the execution during which the judicial and

administrative procedures essential to due process of law are

carried out. Penologists and medical experts agree that the

[protracted] process of carrying out a verdict of death is often

so degrading and brutalizing to the human spirit as to constitute

psychological torture."); Suffo Count istric Vv.

Watson, 411 N.E.2d 1274, 1289-95 & nn. (Mass. 1980) (Liacos, J.,

concurring) (vivid and detailed description of the type of

psychological pain and torture that a condemned person

experiences while awaiting execution); id. at 1287 (Braucher, J.,

concurring) (arguing that capital punishment is unconstitutional

under Massachusetts Constitution in part because "it will be

carried out only after agonizing months and years of

uncertainty"); Commonwealth v. O’Neal, 339 N.E.2d 676, 680-81

(Mass. 1975) (Tauro, C.J., concurring) ("The convicted felon

suffers extreme anguish in anticipation of the extinction of his

existence."); State v. Richmond, 886 P.2d 1329, 1994 WL 699008,

at *3 (Ariz. Dec. 15, 1994); Hopkinson v. State, 632 P.2d 79,

209-11 (Wyo. 1981) (Rose, C.J., dissenting in part) (recognizing

“the dehumanizing effects of long imprisonment pending

execution"); State v. Ross, 646 A.2d 1318, 1379 (Conn. 1994)

{(Berdon, J., dissenting) (same); Soering v. United Kingdom, 11

Eur. Hum. Rts. Rep. 439 (1989) (European Court of Human Rights

refused to extradite a German national from UK to Virginia to

face capital murder charges because of anticipated time that he

would have to spend on death row if sentenced to death);

Vatheeswaran v. State of Tamil Nadu, 2 S.C.R. 348, 353 (India

1983) (criticizing the “dehumanizing character of the delay" in

carrying out an execution); Sher Singh et al. v. The State of

Punjab, 2 S.C.R. 582 (India 1983) ("Prolonged delay in the

execution of a death sentence is unquestionably an important

consideration for determining whether the sentence should be

allowed to be executed."); Catholic Comm’n for Justice & Peace in

Zimbabwe v. Attorney General, No. S.C. 73/93 (Zimb. June 24,

1993) (reported in 14 Hum. Rts. L. J. 323 (1993)).

Similar views have been expressed by legal commentators and

mental health experts. See, e.g., Schabas, Execution Delayed,

Execution Denied, 5 CRIM. L. Forum 180 (1994) [available on

WESTLAW]; Lambrix, The Isolation of Death Row in FACING THE DEATH

PENALTY 198 (M. Radelet ed. 1989); Millemann, Capital Post-

Conviction Prisoners’ Right to Counsel, 48 Mod. L. REV. 455, 499-

500 (1989) ("There is little doubt that the consciousness of

impending death can be immobilizing. ... This opinion has been

widely shared by [jurists], prison wardens, psychiatrists and

psychologists, and writers.") (citing authorities); Mello, Facing

Death Alone, 37 AmeR. L. REV. 513, 552 & n.251 (1988) (same)

(citing studies); Wood, Competency for Execution: Problems in Law

and Psychiatry, 14 FLa. St. U. L. Rev. 35, 37-39 (1986) ("The

physical and psychological pressure besetting capital inmates has

been widely noted .... Courts and commentators have argued that

the extreme psychological stress accompanying death row

confinement is an eight amendment violation in itself or 1s an

element making the death penalty cruel and unusual punishment.")

(citing authorities); Stafer, Symposium On Death Penalty Issues:

Volunteering for Execution, 74 J. Crim. L. 860, 861 & n.10 (1983)

(citing studies); Holland, Death Row Conditions: Progression

Towards Constitutional Protections, 19 AKron L. Rsv. 293 (1985);

Johnson, Under Sentence of Death: The Psychology of Death Row

Confinement, 5 Law & PsYCHOLOGY REVIEW 141, 157-60 (1979); Hussain &

Tozman, Psychiatry on Death Row, 39 J. CLINICAL PSYCHIATRY 183

(1979); West, Psychiatric Reflections on the Death Penalty, 45

- 382

AMER. J. ORTHOPSYCHIATRY 689, 694-95 (1975); Gallemore & Parton,

Inmate Responses to Lengthy Death Row Confinement, 129 Amer. J.

PSYCHIATRY 167 (1972); Bluestone & McGahee, Reaction to Extreme

Stress: Impending Death By Execution, 119 AmeR. J. PSYCHIATRY 393

(1962); Note, Mental Suffering Under Sentence of Death: A Cruel

and Unusual Punishment, 57 Iowa L. REV. 814, 830 (1972); G.

Gottlieb, Testing The Death Penalty, 34 S. CAL. L. REV. 268, 272 &

n.15 (1961); A. Camus, Reflections on the Guillotine in

RESISTANCE, REBELLION & DEATH 205 (1966) ("As a general rule, a man

is undone waiting for capital punishment well before he dies.");

F. Dostoyevsky, THE IpioT 47-48 (D. Magarshack trans. 1955); Duffy

& Hirshberg, EIGHTY-EIGHT MEN AND Two WoMEN 254 (1962) ("One night on

death row is too long, and the length of time spent there by

[some inmates) constitutes cruelty that defies the imagination.

It has always been a source of wonder to me that they didn’t all

go stark, raving mad.") (quoting former warden of California’s

San Quentin Prison).

Of the approximately 3,000 persons on death row in this

country, only a handful of inmates have spent as long a time on

Geath row as Clarence Lackey. Cf. State v. Richmond, 886 P.2d

1329, 1994 WL 699008, at *1-*2 (Ariz. Dec. 15, 1994). What is

especially remarkable about Mr. Lackey’s case is that the bulk of

his many years on death row was not attributable to Mr. Lackey’s

filing discretionary appeals. Rather, those fourteen years

involved two trials (an original trial and a re-trial) and two

automatic, mandatory direct appeals -- proceedings not initiated

by Mr. Lackey. The remainder of the time -- less than three

years -- has been spent expeditiously pursuing legitimate state

and federal habeas corpus appeals raising many substantial

issues. Such a delay, according to Chief Justice Rehnquist,

makes “a mockery of our criminal justice system,” which

"“undermine(s) the integrity of the entire criminal justice

system." Coleman v. Balkcom, 451 U.S. 949, 958-59 (1981)

(Rehnquist, J., dissenting from denial of certiorari).

Cc. The British Privy Council’s Landmark Decision in

Pratt & Morgan |

In addition to the above-cited authorities, Mr. Lackey’s

Eighth Amendment arguments are strongly supported by a recent

landmark decision in a capital appeal rendered by the Judicial

Committee of the Privy Council of the United Kingdom (the "Privy

Councii")," which involved a factual situation quite similar to

Mr. Lackey’s case. See

Jamaica, Privy Council Appeal No. 10 of 1993, 3 WLR $95, 143 NIJ

1639, 2 AC 1, 4 All ER 769 (Nov. 2, 1993) (en banc) (available on

LEXIS).

In Pratt, an appeal by two condemned men on Jamaica’s death

row, the Privy Council, sitting en banc for the first time in

five decades, unanimously helu that carrying out the death

sentences of the two men would be “torture,” and “inhuman” and

" The Privy Council is the highest appellate court for

Commonwealth nations. The jurists who sit on the Privy Courcil

are likewise members of England’s highest domestic appellate

court, the House of Lords (“the Law Lords").

“degrading” punishment. The Privy Council did not hold that

capital punishment was ervel and unusual per se, but instead

focused on the fact that the condemned men had been on death row

for a protracted period of time (fourteen years) and,

furthermore, that the men had been read execution warrants on

three separate occasions, only to have their scheduled executions

stayed shortly before the sentences were to be carried out.

The rationale of the case was summarized in the opening

paragraph:

The appellants ... were arrested 16 years ago for

murder ... On 15th January 1979 they were convicted

of murder and sentenced to death. ... On three

occasions the death warrant has been read to [Pratt and

Morgan) and they have been removed to the condemned

cells immediately adjacent to the gallows. ... The

Statement of these bare facts is sufficient to bring

home to the mind of any person of normal sensitivity

and compassion the agony of mind that these men must

have suffered as they have alternated between hope and

despair in the 14 years that they have been in prison

facing the gallows.

Slip op., at 1 (emphasis added). As the Privy Council further

stated:

There is an instinctive revulsion against the prospect

of [executing] a man after he has been held under

sentence of death for many years. What gives rise to

this instinctive revulsion? The answer can only be our

humanity; we regard it as an inhuman act to keep a man

facing the agony of execution over a long extended

period of time.

Id. at 16.

The Privy Council’s primary focus was on the sheer length of

time that Pratt and Morgan were kept on death row, although a

significant secondary theme in the court’s reasoning was that the

setting of numerous execution dates that were withdrawn and then

re-set was itself inhumane and cruel. The court quoted Winston

Churchill on this point:

i f the

Mr. Winston Churchill expressed the sentiment o

House when he said “people ought not to be brought up

to execution, or believe that they are to be executed,

time after time whether innocent or guilty, however it

may be, whatever the crime. That is a wrong thing.

Id. at 3.

Pratt & Morgan also surveyed the history of English common

law regarding the subject of lengthy imprisonment of a condemned

man on death row and the repeated setting of execution dates in a

single case. The Privy Council concluded that neither practice

was condoned historically at common law. See, e.g., id. at 2-3

("It is difficult to envisage any circumstance in which in

England a condemned man would have been kept in prison for years

awaiting an execution."); id. at 5 (noting the “common law

practice that execution followed as swiftly as practical after

sentence"); see also Riley v. Attorney General of Jamaica, 1 AC

719, 3 All ER 469 (Privy Council 1983) (Lord Scarman, dissenting,

joined by Lord Brightman) ("(T)here is a formidable case for

suggesting that execution after inordinate delay would have

infringed the prohibition against cruel and unusual punishment to

be found in Section 10 of the Bill of Rights of 1689...."),

majority opinion overruled by Pratt & Morgan v. Attorney General

of Jamaica, 2 AC 1, 4 All ER 769, 3 WLR 557 (Privy Council 1993)

(en banc) .“

2 as Justice Scalia has recognized, “(t}here is no doubt"

English Bill of Rights of 1689 "is the

that Section 10 of the Eng eA

Pratt & Morgan, along with U.S. and international

authorities discussed herein, offers a firm legal basis for Mr.

Lackey’s Eighth Amendment claim challenging the State’s right to

execute the death sentence in this case."

D. Eighth Amendment Authority Supporting Mr. Lackey’s

Claim

Recent Eighth Amendment decisions have, as a threshold

matter, focused on whether a challenged punishment was considered

unacceptable at the time of the adoption of our Bill of Rights.

See, e.g., Stanford v. Kentucky, 109 S. Ct. 2969, 2974 (1989) (in

rejecting claim that the execution of 16 and 17 year olds is

cruel and unusual, Court noted that the punishment was not "‘one

of those modes or acts of punishment that had been considered

cruel and unusual at the time that the Bill of Rights was

adopted’") (quoting Ford v. Wainwright, 477 U.S. 399, 405

(1986)). If a punishment was considered cruel and unusual in

1789, then this Court’s Eighth Amendment analysis goes no

further; if the Framers considered a punishment cruel and unusual

2... continued)

antecedent” of the cruel-and-unusual-punishments clause of our

Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 966

(1991) (opinion of Scalia, J.).

% Literally hundreds of American courts and jurists have

been guided by the decisions of the Privy Council, the highest

expositor of law in our Mother Country, whose common law has

greatly shaped our own law. See, e.g., United States v. Raddatz,

447 U.S. 667, 679 (1980) (citing a Privy Council decision with

approval); Kilbourn v. Thompson, 103 U.S. 168, 186 (1881) (same) ;

see also Fisher v. United States, 328 U.S. 463, 486-88 (1946)

(Frankfurter, J., dissenting) ‘"This Court in reviewing a

conviction for murder ... ought not be behind ... the Privy

Council ....") (discussing Privy Council decisions).

in 1789, then a fortiori it is cruel and unusual today. See

Ford, 477 U.S. at 405-06.

As discussed above, the Privy Council’s review of English

common law makes it clear that a nearly two-decade stay on death

row would never have been tolerated at common law under any

circumstances. Although elaborate appeals in capital cases

(leading to frequent re-trials) are a relatively recent

phenomenon -- largely a function of this Court’s post-Furman

Eighth Amendment capital jurisprudence -- the necessary delay

occasioned by such appeals cannot constitutionally extend to the

point where the State keeps a man on death row for well over a

decade because of mandatory appeals, as in this case.” That is,

even factoring in the incidental delay caused by modern appeals,

a state cannot justify taking over a decade to obtain a final

conviction and death sentence on direct review. See Pratt &

Morgan, slip op. at 20 ("In their Lordships’ view a State that

wishes to retain capital punishment must accept the

responsibility of ensuring that an execution follows as swiftly

as practicable after sentence....").

The Texas courts took fourteen years to obtain a

constitutional final conviction and sentence in Mr. Lackey’s

case. Such an inordinate delay -- which would never have been

“% Relying on other international law cases, the Privy

Council in Pratt held that even if an inordinate delay between

trial and execution is attributable to discretionary appeals

filed by the condemned person, the government nevertheless has no

right to carry out an execution if the delay resulted from

legitimate, non-frivolous appeals. See, e.g., Pratt & Morgan,

Slip op., at 18-20 (discussing cases).

permitted at common law -- is by itself a sufficient reason to

prohibit the State of Texas from carrying out Mr. Lackey’s

scheduled execution. The Eighth Amendment requires no more.

Assuming that a particular type of punishment was permitted

at the time that the Bill of Rights was adopted -- or, in this

case, assuming that the post-Furman requirement of meaningful

appellate review in capital cases somehow alters the common law

requirement described above -- a second, more difficult question

arises: whether a punishment that may have been acceptable to the

Framers of the Constitution nonetheless now viciates modern

society’s civilized standards. See, e.g., Campbell v. Wood, 18

F.3d 662 (9th Cir. 1994) (en banc) (hanging not a cruel and

unusual punishment).

Addressing the second prong of this Court’s Eighth Amendment

analysis, this Court has interpreted the reach of the Amendment

in a “flexible and dynamic manner." Gregg v. Georgia, 428 U.S.

153, 171 (1976); see also Weems v. United States, 217 U.S. 349,

373 (1910) ("a principle, to be vital, must be capable of wider

application than the mischief which gave it birth"). Rather,

The Eighth Amendment “must draw its meaning from the evolving

standards of decency that mark the progress of a maturing

society." Trop v. Dulles, 356 U.S. 86, 101 (1958). As the

concepts of dignity and civility evolve, so too do the limits of

what is considered cruel and unusual. Such factors include the

practices among the majority of the states in this country and

international practices. See, e.g., Stanford v. Kentucky, 492

U.S. 361, 369 (1989); Coker v. Georgia, 433 U.S. 584 (1977);

Enmund v. Florida, 458 U.S. 782 (1982).

The latter is obviously particularly relevant for purposes

of the claim presented herein. As discussed above, the weight of

international authority -- including a recent unanimous decision

by the highest court in our Mother Country -- strongly supports

Mr. Lackey’s contention that his execution would violate the

Eighth Amendment.

Other well-established Eiahth Amendment principles of broad

application are relevant to this Court’s analysis. The Eighth

Amendment “embodies ‘broad and idealistic concepts of dignity,

civilized standards, humanity and decency’" against which forms

of punishment must be measured. Estelle v. Gamble, 429 U.S. 97,

102 (1976) (citation omitted). It “expresses the revulsion of

civilized man against barbarous acts -- the ‘cry of horror’

against man’s inhumanity to his fellow man." Robinson v.

California, 370 U.S. 660, 676 (1962) (Douglas, J., concurring).

The Eighth Amendment’s restrictions on the ability of a

state to impose certain types of punishment “aim ... to protect

the condemned from [unnecessary] fear and pain ... or to protect

the dignity of society itself from the barbarity of exacting

mindless vengeance." Ford v. Wainwright, 477 U.S. 399, 410

(1986). At its core, the Eighth Amendment stands to safeguard

“nothing less than the dignity of man." Trop v. Dulles, 356 U.S.

86, 100 (1958). It cannot be gainsaid that keeping a condemned

man on death row -- a place that Mr. Lackey has appropriately

described as “one of the loneliest, most miserable places on

earth" -- for nearly two decades impugns fundamental human

dignity when there is no legitimate state interest justifying the

inordinate delay.

In the particular context of capital punishment -- where the

infliction of some incidental pain is obviously unavoidable --

this Court’s Eighth Amendment analysis of what is "cruel and

unusual” turns on whether unnecessary or gratuitous pain is part

of the punishment. As the Court stated in State ex. rel. Francis

Vv. Resweber, 329 U.S. 459 (1947):

The traditional humanity of modern Anglo-American law

forbids the infliction of unnecessary pain in the

execution of the death sentence. Prohibition against

the wanton infliction of pain has come to our law from

the (English) Bill of Rights [of 1689}. ... Mr.

Francis’ suggestion is that because he once underwent

the psychological strain of preparation for

electrocution, now to require him to undergo this

preparation again subjects him to a lingering or cruel

and unusual punishment.... [The Constitution does not

protect against) the necessary suffering involved in

any method employed to extinguish life humanely. The

fact that an unforeseen accident prevented the prompt

consummation of the sentence cannot, it seems to us,

add an element of cruelty to a subsequent execution.

There is no purpose to inflict unnecessary pain nor any

unnecessary pain involved in the proposed execution.

The situation of the unfortunate victim of this

accident is just as though he had suffered the

identical amount of mental anguish and physical pain in

any other occurrence, such as, for example, a fire in

the cell block.

Id. at 463-64 (emphasis added).

As a result of the abhorrent conditions to which he has

been subjected during the last eighteen years, Clarence Lackey

'' See Appendix A, 46.

has endured a needlessly lingering form of torturous

psychological punishment that, if the State has its way, will

culminate in a lethal injection following the recent issuance of

Mr. Lackey’s fourth execution warrant. See Gregg v. Georgia, 428

U.S. 153, 170-71 (1976) (unnecessarily lingering form of

execution is unconstitutional under the Eighth Amendment) (citing

In re Kemmler, 136 U.S. 436, 447 (1890)).

Finally, the fact that Petitioner is challenging the

lingering psychological anguish resulting from his excessively

lengthy stay on death row and repeated execution dates -- and is

not alleging physical torture -- does not foreclose an Eighth

Amendment claim.'® It is well-established that the infliction of

extreme mental anguish can be a form of unconstitutional torture.

See, e.g., Trop v. Dulles, 356 U.S. at 102 (expatriation as

penalty for desertion "subjects the individual to a fate of ever-

increasing fear and distress"); Hudson v. McMillan, 112 U.S. 995,

1004 (1992) (Blackmun, J., concurring) ("I am unaware of any

precedent of this Court to the effect that psychological pain is

not cognizable for constitutional purposes [under the Eighth

Amendment). If anything, our precedent is to the contrary.");

Furman v. Georgia, 408 U.S. 238, 271-73 (1972) (Brennan, J.,

% In Pratt & Morgan, the British Privy Council focused

exclusively on the mental torture inflicted on two condemned men

on Jamaica’s death row. See Pratt and Morgan, slip op., at 1-2

(describing "the agony of mind that these men must have suffered

as they have alternated between hope and despair in the 14 years

that they have been in prison facing the gallows. It is

unnecessary to refer to the evidence describing ... the emotional

and psychological impact of this experience, for it only reveals

that which is to be expected.").

concurring) ("(T]jhe Framers also knew {]that there could be

exercises of cruelty other than those which inflicted bodily pain

or mutilation.");: see also Smith v. Aldingers, 999 F.3d 109, 110

n.4 (Sth Cir. 1993) (collecting recent cases holding that mental

or psychological torture can violate the Eighth Amendment); cf.

in_re Medley, 134 U.S. 160, 172 (1890) (recognizing the “immense

mental anxiety" that a condemned man experiences when the

authorities intentionally refuse to inform him of the precise

"date of his scheduled execution, and referring to it as "one of

the most horrible feelings to which he can be subjected")

(emphasis added).

Admittedly, In re Medley was an ex post facto case.

However, its century-old recognition of the “immense" and

"horrible" mental anguish that a condemned man feels when he does

not know the date of his execution -- which this Court recognized

as a form of "punishment" implicating the ex post facto clause --

is instructive here. Petitioner does not allege that particular

type of mental anxiety caused by his confinement on Texas’ death

row; however, he does contend that the conditions on death row

that he has faced have been equally or more "immense" and

"horrible." Therefore, to permit the State to carry out an

execution after requiring Clarence Lackey to endure such

conditions for nearly two decades would unquestionably violate

the Eighth Amendment.

E. Inordinate Delay in the Disposition of a Capital

to the te of the

Legislature

Finally, Petitioner calls this Court’s attention to the

Texas statute governing the imposition of capital punishment in

existence from 1974-91, which expressly provided for an extremely

prompt automatic direct appeal. See TEx. CopE CRIM. PRO. 37.071(f)

(Vernon’s ed. 1974) (automatic direct appeal requiring "review

within 60 days of certification of record," with a possibility of

a 30-day extension upon the showing of “good cause,” and

providing for priority over non-capital appeals). This statutory

provision, which was enacted at the very same time that the Texas

Legislature enacted the original post~Furman capital sentencing

statute in 1973, evinces a clear legislative judgment that

promptness is necessary in automatic capital appeals. Of course,

the provision has been ignored by the Texas Court of Criminal

Appeals in hundreds of cases, including Mr. Lackey’s case.

Although not necessarily dispositive of Mr. Lackey’s claim,

but cf. Ford v. Wainwright, 477 U.S. 399, 428-29 (1986)

(O'Connor, J., concurring), this statutory provision further

should inform this Court’s analysis of what the Eighth Amendment

requires based on a legislative judgment made contemporaneously

with the resurrection of capital punishment in Texas after

Furman.

F. This Claim is Appropriately Raised at this

Juncture

Although Petitioner recognizes that "this Court rarely

grants review at this stage of the [post-conviction] litigation

even when the application for state habeas relief is supported by

arguably meritorious constitutional claims,""’ this Court’s

primary rationale for not doing so is the Court’s belief that

“federal habeas proceedings [are] the more appropriate avenues

{in the first instance] for consideration of federal

"8 In this case, Petitioner has already

constitutional claims.

exhausted one round of federal habeas corpus appeals and --

barring unforeseen circumstances -- does not intend to file a

successive federal petition raising this claim."

There is no need to require Petitioner to file a successive

a Kyles v. Whitley, 498 U.S. 931, 932, 111 S. Ct. 333

(1991) (Stevens, J., concurring in denial of stay and

certiorari).

7 2.

’% Petitioner believes that such a successive federal

petition would not be barred under the federal abuse-of-the-writ

doctrine because Petitioner’s claim asserts that he is now

constitutionally ineligible for capital punishment and, thus,

permitting his execution would constitute a fundamental

“miscarriage of justice." See Sawyer v. Whitley, 112 S. Ct.

2514, 2519-23 (1992); cf. Penry v. Lynaugh, 492 U.S. 302, 329-30

(1989) (interpreting the first exception of Teague v. Lane, 489

U.S. 288 (1989), as encompassing claims asserting that an inmate

is ineligible for capital punishment; when "the Constitution

itself deprives the State of the power to impose a certain

penalty, and the finality and comity concerns underlying [the

Teague doctrine} have little force here") (citing Ford v.

Wainwright, 477 U.S. 399 (1986)).

A similar claim was raised on federal habeas review in the

Court of Appeals; however, it was rejected both on the ground

that it was not raised in the federal district court and also

(mistakenly) on the ground that it was barred under the Teague

retroactivity doctrine. See Lackey v. Scott, 28 F.3d 486, 492

(5th Cir. 1994). Notably, the federal district court denied

relief well before the Privy Council’s decision in Pratt &

Morgan, which was rendered in November 1993.

federal habeas appeal as a prerequisite for review by this Court

because Petitioner herein asserts a claim which may be addressed

just as appropriately by this Court in the present procedural

posture as by a lower federal court. No additional factual

development is required. The only issues raised are questions of

law. Moreover, under the law of the case doctrine the federal

district court and Fifth Circuit would presumably be bound by the

Fifth Circuit’s mistaken holding on Petitioner’s federal habeas

appeal that this type of claim is barred under the Teague

doctrine.*® Thus, resort to the lower federal courts would be

futile.

Moreover, such a grant of certiorari would hardly be

unprecedented in this procedural posture. Indeed, in State ex

rel. Francis v. Resweber, 329 U.S. 459 (1947), this Court granted

certiorari to a review a state post-conviction habeas corpus

appeal. See also Perry v. Louisiana, 494 U.S. 1015 (1990), later

proceeding, 498 U.S. 38 (1991) (granting cert. to review state

post-conviction appeal).

0 Mr. Lackey’s requested relief is not barred under this

Court’s non-retroactivity doctrine, see Teague v. Lane, 489 U.S.

288 (1989), because this is not a species of constitutional claim

that could be subject to a Teague retroactivity analysis.

Rather, this is a claim that was not fully ripe for consideration

until 1992 -- after Petitioner’s conviction was final. It was

not a claim that could have been anticipated at the onset of Mr.

Lackey’s second direct appeal (i.e., when the brief was filed),

since it does not concern anything that happened at trial. Thus,

Teague has no application to this type of claim. Finally,

assuming arguendo that Teague applied to this type of claim, the

claim would fall squarely under Teague’s first exception because

the claim alleges that Mr. Lackey is ineligible for capital

punishment. See Penry v. Lynaugh, 492 U.S. 302, 329-30 (1989).

CONCLUSION

Although this Eighth Amendment claim may be somewhat novel

in the U.S. courts, it is firmly rooted in both this Court’s

Eighth Amendment jurisprudence and English common law going back

eaves centuries. In order to address the many important Eighth

Amendment issues raised by this petition, this Court should grant

certiorari and stay Petitioner’s imminent execution.

Respectfully submitted,

LN 4 6 We hun Lagu? florméstr

* Robert C. Owen a

Brent E. Newton Jn A™

Texas Resource Center Ww? C

3223 Smith Street

Suite 215

Houston, Texas 77006

(713) 522-5917

fax: (713) 522-2733

Counsel for Petitioner

* Counsel of Record

Member, Supreme Court Bar

APPENDIX A

STATE OF TEXAS ) Page Two

) Lackey Affidavit

COUNTY OF WALKER)

AFFIDAVIT OF CLARENCE ALLEN LACKEY

Comes now Clarence Allen Lackey and states the following:

1. My name is Clarence Allen Lackey. I am a death row

inmate who is incarcerated at the Ellis One Unit of the

Texas Department of Criminal Justice, Institutional

Division, in Hunstville, Texas. I am over the age of

21 and am otherwise competent to make this affidavit.

2. I was arrested on capital murder charges in 1977. I

was first tried (and convicted and sentenced to death)

in 1978. I was told by the trial judge and my attorney

that Texas law provided for a mandatory, automatic

direct appeal, which was taken to the Texas Court of

Criminal Appeals. That court reversed my conviction

and sentence in 1982. I then was re-tried in 1983 and

again convicted of capital murder and sentenced to

death. Once again, I had a mandatory, automatic direct

appeal. In 1989, the Texas Court of Criminal Appeals

denied my direct appeal and, two years later, in 1991

denied a motion for rehearing. Thereafter, new

attorneys took over my case and state and federal

habeas appeals were filed. '

3. So far four different death warrants (setting my

execution dates) have been issued in my case. The

first date was in July of 1992. The second date was in

October of 1992. The third date was in December of

1992. Each of those execution dates was stayed by the

state or federal courts. My fourth execution date is

now pending.

4. The many years that I have spent on death row have

been filled with severe stress, depression, and

anxiety. The experience of the third execution date

was the most traumatic for me. I came within a matter

of hours of being executed before that third execution

date was stayed by a federal court. After the third

date was stayed, I became very ill -- emotionally and

physically -- as a result of that traumatic experience.

5. Being on death row so long has been an emotional

roller coaster for me. There have been times when I

have had great hope that I would win a new trial cr

have my death sentence commuted. But there have also

been countless times when I have believed that the

State was actually going to kill me. Preparing for

death is a draining experience, both emotionally and

spiritually. It should be something that a person has

to do only once in a lifetime. I have had to do that

many times since being on death row during these many

years. I’ve also had to watch my loved ones experience

similar pain.

6. Death row is one of the loneliest, most miserable

places on the earth. It is not only miserable because

you know the state is planning on killing you, but also

because you see the state killing other human beings

around you. There have been approximately 90

executions in Texas since I’ve been here. My inmate

identification number is 591. The guys that they’re

bringing to death row now have their inmate

identification numbers in the 1100s. A lot of time has

passed, almost two decades, since I’ve been here. I

was a young man when I was arrested. Now I’m

approaching my middle aged years.

7. There have been countless times that I have been

unable to eat or sleep because of the never-ending

stress that I have felt during my lengthy time on death

row. Depression and anxiety always follows you around.

You never seem to be able to escape it here. I

regularly have had nightmares. I have them almost

every night when I have had an execution date pending.

8. Although one of my attorneys, Brent Newton, typed

this affidavit, it reflects what I have said. I have

carefully read this over before signing it.

Affiant further sayeth not.

APPENDIX B

CITY ot DIFFEKUVANGE, GKAND DUCHY of LUXEMP/™IRG (EUROPE).

AFFIDAVIT

Comes now the Affiant, Josette TILLING, and states the following :

My name is Josette TILLING. I am a citizen of Luxembourg, a country in

Europe. I am over the age of 21 and am otherwise competent to make this

affidavit.

I have known a Texas death row inmate named Clarence LACKEY for over four

years. Since January 1991, I have corresponded with him by mail. In the

first two years of knowing Clarence, I corresponded with him on a weekly

basis; since December of 1992, I have corresponded with Clarence on a

nearly daily basis. He has written me letters nearly every other over

day for the last two years. I have also flown to the U.S.A. in order to

visit personally with Clarence on numerous occasions at the Ellis One

Unit in Huntsville, Texas. I have personally visited with Clarence on

18 different occasions at the prison, for approximately 80 total hours.

Although we are not related, I feel like Clarence is a close relative.

He has opened up his life to me. I love him very much.

. Since I have known Clarence, he has had four execution dates set by the

Texas courts. The first date was in July of 1992. The second date was

in October of 1992. The third date was in December of 1992. Each execution

date was ultimately stayed by the courts. Clarence's fourth execution

date is now pending.

. In letters and in personal visits, Clarence has told me about what he

felt when those execution dates were scheduled and then stayed. I have

also observed the effect of the repeated dates on Clarence. The repeated

execution dates have caused Clarence severe stress, depression, anxiety,

and fear. The experience of the third execution date was the most trauma-

tic for Clarence. He came within seven hours of being executed before

that third execution date was stayed by a court. Clarence became very

ill — emotionally, mentally, and physically — as a result of that expe-

rience. After this latest execution was scheduled in early 1995, Clarence

has become extremely depressed and scared of dying. What has really trauma-

tized Clarence is the repeated nature of the execution dates scheduled

between 1992-1995. Clarence’s pain has also been the result of the fact

that he has spent nearly two decades on death row, waiting to die.

"=o 1"V

TILLING Affiday

APPENDIX C

5. Clarence has limited intellectual abilities. There was evidence at his

trial that he suffers from borderline or mild mental retardation. In many

ways, he is very much like a little boy. It is my opinion that his stress

and anxiety caused by the repeated execution dates and the length of ti-

me that he has been on death row have been increased because of Clarence's

limited intellectual abilities.

Affiant further sayeth aot. , ,

oA tin por

(

Josett¢ TILLING )

SWORN AND SUBSCRIBED BEFORE ME ON THIS 7** DAY OF FEBRUARY, 1995.

APOSTILLE

(Convention de la Haye du 5 octobre 1961)

Le présent acte public

2. @ été signe par He &

3. agissant en quslité de... ae

4. est revétu du sceeu/timbre de.

Attesté

5.4 Luxembourg gj 14 FEV. 1995

aad Ministére

9. Scua. tiie: 10. Signature:

ete eee ee e

‘a

du Service des Passeports,

Visas et Légalisations

and psychological upact of this experience, for it only

reveals that which it is to be expected. These men are not

alone in their suffering for there are now 23 prisoners in

death row who have been awaiting execution for more than

ten years and 8? prisoners who have been awaiting

execution for more than five years. It is against this ~

disturbing background that their Lordships must now

determine this constitutional appeal and must in particular

re-examine the correctness of the majority decision in Riley

v. Attorney-General of Jamaica [1983] 1 A.C. 719.

The death penalty.

The death penalty in the United Kingdom has always been

carried out expeditiously after sentence, within a matter of

weeks or in the event of an appeal even to the House of

Lords within a matter of months. Delays in terms of years

are unheard of.

In earlier times execution for murder, as opposed to other

capital offences, followed immediately after conviction. In

1752 An Act for better preventing the horrid Crime of

Murder (25 Geo. 2, ¢.37) provided that all persons

convicted of murder should be executed on the next day but

one after sentence, unless convicted on Friday_in which

case they were to be executed on Monday and kept in

solitary confinement upon bread and water until executed.

The extreme rigour of this regime of immediate execution for

murder was re-enacted in the Offences against the Person

Act 1828 (9 Geo. 4, ¢.31) but was repealed by the Act of

1836 (6 Will. 4, c.30) “more effectually to preserve from an

irrecoverable Punishment any Persons who may hereafter be

convicted upon erroneous or perjured Evidence" and it was

enacted that henceforth sentence of death in murder cases

should be pronounced in the same manner and the judge

should have the same powers as after convictions for other

capital offences.

In England the practice in capital cases, henceforth

including murder, was for the sheriff to fix a date of

execution in the fourth week after the death sentence was

passed. In Scotland, the date of execution was fixed by the

court under section 2 of the Criminal Law (Scotland) Act

1830: if sentence was pronounced south of the Forth, it was

fixed between 15 and 21 days hence, and if north of the

Forth, between 20 and 27 days hence. In both England and.

Scotland the Court of Appeal heard an appeal in a capital

case within three weeks of verdict. If the appeal was

unsuccessful a revised execution date was set not less than

14 or more than 18 days after the day when the appeal was

dismissed, in order to allow the Secretary of State time to

decide whether the sentence should be commuted. The

Report of the Royal Commission on Capital Punishment 1949-

53 (Cmd. 8932) gave the average delay in 1950 as six weeks

if there was an appeal and three weeks if there was not.

In 1947 there was great public disquiet that men

convicted of a murder on the Gold Coast had been under

Sea na le

sentence of death for two years. The matter was debated

in Parliament and the Colonial Secretary gave an

assurance to the House that the rules and practice to be

adopted in the Colonies should be quite sufficient to

prevent a repetition of the happenings in the Gold Coast.

The concern expressed by members of Parliament in the

course of the debate reflected the expectation that the

Colonies would follow the long established practice in this

country that execution would not be long delayed after

sentence. Mr. Winston Churchill expressed the sentiment

of the House when he said “people ought not to be

brought up to execution, or believe that they are to be

executed, time after time whether innocent or guilty,

however it may be, whatever their crime. That is a

wrong thing™.

The rules and practice referred to by the Colonial

Secretary were those that laid down a strict timetable for

appeals to the Judicial Committee of the Privy Council and

provided that execution would only be stayed so long as

the timetable was adhered to. Such rules were in force in

Jamaica-before independence and were adopted after

independence by the Governor-General in PriVy Council

on 14th August 1962; it will in due course be necessary to

consider why they were-noet-followed in this case.

Delay of the character which has occurred in this case

had never happened in Jamaica before independence.

Appendix C of the appellants’ case contains a schedule

showing the time that elapsed between the date of

conviction, appeal and execution in 40 capital cases

immediately after independence between the years 1962

and 1970. The time is never more than 18 months and

usually considerably shorter. The Solicitor-General felt

unable to accept the accuracy of this schedule, but no

figures were submitted to contradict it, and their

Lordships accept it as showing that the delays that are

now being encountered in the execution of the death

penalty are of fairly recent origin.

It is difficult to envisage any circumstances in which in

England a condemned man would have been kept in prison

for years awaiting execution. But if sucha situation had

been brought to the attention of the court their Lordships

do not doubt that the judges would have stayed the

execution to enable the prerogative of mercy to be

exercised and the sentence commuted to one of life

imprisonment. Prior to independence, applying the

English common law, judges in Jamaica would have had

the like power to stay a long delayed execution, as

foreshadowed by Lord Diplock in Abbott v. Attorney-

General of Trinidad and Tobago [1979] 1 W.L.R. 1342

when he said at page 1348:-

“In such a case, which is without precedent and, in

their Lordships’ view, would involve delay measured

in years, rather than in months, it might be argued

that the taking of the condemned man's life was not

“by due process of law’ ."

And as was asserted by Lord Templeman in Bell v. D.P.P-

[1985] A.C. 937 where at page 950 he said:-

“Their Lordships do not in any event accept the

submission that prior to the Constitution the law of

Jamaica, applying the common law of England, was

era pg to provide a remedy against unreasonable

e ay.”

The Chronology.

It is now necessary to consider and comment upon the

course of events that has resulted in the inordinate delay

that has occurred in this case.

The murder was committed on Sth October 1977 and the

appellants were sentenced to death on 15th January 1979.

Their application for leave to appeal was dismissed by the

Court of Appeal on Sth December 1980 who said that they

would hand down their reasons later. Although notice of

application for leave to appeal was given within three days

of the conviction on 18th January 1979, it took almost two

years to arrange a hearing by the Court of Appeal. Making

every allowance for the pressure of work on the Jamaican

courts this does seem a long time to arrange a-hearing in a

capital case which one would have expected to have been

expedited. On their application for leave to appeal the

appellants both asked that the Court of Appeal should

assign legal aid tothem. The appeal was listed for hearing

before the appellants had been assigned legal aid and had

to be taken out of the list on their application on 28th May

1980 so that they might be legally represented. On the

following day, 29th May 1980, a legal aid certificate was

issued and counsel were assigned to the appellants. It

appears therefore that at least part of the delay in hearing

the appeal was attributable to the failure to issue a legal aid

certificate at a much earlier date.

On 7th January 1981, a month after their application for

leave to appeal was dismissed, the appellants wrote to the

Registrar of the Court of Appeal requesting that the

necessary papers be made available to their Attorneys-at-

law so that whenever they wished they could take the case

to the Judicial Committee of the Privy Council. On 30th

January the Registrar replied to say she had spoken to

their Attorney-at-law, Mr. Eric Frater, who had advised

her that he was endeavouring to take their matter to the

Privy Council in England.

It was at this stage, after the dismissal of their

application by the Court of Appeal, that their Lordships

would have expected the Governor-General to refer the case

to the Jamaican Privy Council (JPC) to advise him whether

or not the men should be executed in accordance with

sections 90 and 91 of the Constitution which provide: -

“90.-(1) The Governor-General may, in Her Majesty's

name and on Her Majesty's behalf -

(a) grant to any person convicted of any

offence against the law of Jamaica a

pardon, either free or subject to lawful

conditions;

(b) grant to any person a respite, either

indefinite or for a specified period, from

the execution of any punishment imposed

on that person for such an offence;

for that imposed on any person for such an

offence; or

(d) remit the whole or part of any punishment

imposed on any person for such an offence

or any penalty or forfeiture otherwise due

to the Crown on account of such an

offence.

(2) Im the exercise of the powers conferred on

him by this section the Governor-Generalshall act

on the recommendation of the Privy Council.

91.(1) Where any person has been sentenced to

death for an offence against the law of Jamaica, the

Governor-General shall cause a written report of the

case from the trial judge, together with such other

information derived from the record of the case or

elsewhere as the Governor-General may require, to

be forwarded to the Privy Council so that the Privy

Council may advise him in accordance with the

provisions of section 90 of this Constitution.

(2) The power of requiring information

conferred on the Governor-General by subsection

(1) of this section shall be exercised by him on the

recommendation of the Privy Council or, in any case

in which in his judgement the matter is too urgent to

admit of such recommendation being obtained by the

time within which it may be necessary for him to act,

in his discretion."

These sections are included in the Constitution against

the background of the pre-existing common law practice

that execution followed as swiftly as practical after

sentence. They must be construed as imposing a duty on

the Governor-General to refer the case to the JPC and

the JPC to give their advice as soon as practical. In the

ordinary course of events the Governor-General should

refer a capital case to the JPC immediately after the

appeal is dismissed by the Court of Appeal, unless there

exist some special circumstances such as a moratorium

upon the execution of all death sentences or a decision is

awaited in another case of either the Judicial Committee

of the Privy Council or a human rights body that may

affect the view of the JPC. The Instructions approved

by the Governor-General in Privy Council date? 14th

August 1962 for dealing with applications from or on behalf

of prisoners under sentence of death for special leave to

appeal to the Judicial Committee of the Privy Council are

written upon the premise that the date for execution has

already been set and will only be postponed if the prisoner

adheres _to the strict timetable contained in the

instructions. It is implicit in these Instructions that, by

the time the prisoner has taken advice as to whether or not

he should petition the Judicial Committee of the Privy

Council in England, a decision will already have been taken

by the JPC as to whether or not he should be executed or

reprieved. There is no indication that the letter written to

the Registrar on 7th January 1981 was brought to the notice

of the Governor-General, and certainly no intimation in

writing was sent to the Governor-General of an intention to

apply to the Judicial Committee of the Privy Council as

required by the Instructions.

Their Lordships were surprised to learn from the written

submissions of the respondents that the procedure set out

in the 1962 Instructions is no longer adhered to. The

respondents say:-

“The appellants in keeping with what had now become

established practice gave no intimation .to the

Governor-General of his intention to apply for special

leave. That procedure had long fallen into disuse; it

was a relic of history; it was obsolete; it was not

required by law. The practice was now to apply

directly to the Registrar of the Court of Appeal so that

papers could be sent directly to the solicitors in

London.”

Their Lordships can perceive no reason why the

appeilants’ case should not have been referred to the JPC

for a decision early in 1981. A reason for a short period of

delay after the decision of the Court of Appeal in December

1980 may be found in the political debate on the desirability

of retaining the death sentence in Jamaica which resulted in

a resolution of the Senate on 9th February 1979 to suspend

all executions for a period of eighteen months pending the

report of a Committee of inquiry. The Committee of Inquiry

was appointed in June 1979. Before the Committee

reported, an execution took place on 27th August 1980

which drew a protest to the JPC from the Chairman of the

Committee. No further executions took place before the

Committee reported in March 1981. On 12th May 1981

executions were resumed. The JPC must have considered

and advised on the 12th May execution shortly after the

Committee reported in March and it is difficult to see why at

about that time they should not have considered and

advised upon the appellants’ case.

it is true that on 12th June 1981 Pratt petitioned the

Inter-American Commission on Human Rights (LACHR) but

it would not appear that the Jamaican authorities were aware

of this until the LACHR wrote to the Government of Jamaica

requesting information about Pratt's case on 17th February

1953. So these proceedings provide no answer to the

question why the JPC did not consider the appellants’

case in 1981.

If the case had been considered by the JPC at that time

and an execution date had been fixed their Lordships

have little doubt that this would have galvanised the

appellants and their legal advisers into pursuing their

application for leave to appeal to the Judicial Committee

of the Privy Council. As it was, no date was set for

execution and matters were allowed to drift on; whether

this was a deliberate policy adopted by the appellants and

their advisers or, as seems more likely, due to the

appellants’ lack of access to legal advice, cannot be

determined with any certainty.

Pratt showed renewed interest in the possibility of an

appeal to the Judicial Committee of the Privy Council

when he wrote on 23rd March 1984 to an English Member

of Parliament to enquire about his right to appeal to the

Privy Council and received advice in the form of a letter

written by the Registrar to the Judicial Committee of the

Privy Council which was forwarded to him on.l/th May.

Pratt then on 16th August wrote to the Registrar of the

transpired that no reasons had yet been prepared by the

judge to whom the writing of the judgment had been

assigned. The papers had apparently been put in the

wrong bundle and forgotten. This was a serious

oversight by the judge and by those in the office of the

Court of Appeal who should have reminded him that

reasons had not been provided in accordance with the

practice of the Court of Appeal, which is to provide a

reserved judgment or reasons within three months of a

hearing. Prompted by Pratt's request reasons were

quickly prepared and handed down on 24th September

1984. No immediate steps were, however, taken to

petition the Judicial Committee of the Privy Council.

On 3rd October the LACHR rejected Pratt's submission

that his trial was unfair; but recommended that his

sentence be commuted for humanitarian reasons.

Again their Lordships do not understand why the case

was not then referred to the JPC to advise whether or not

the execution should proceed. However it was not and

1985 appears to have been a year of total inactivity.

On 28th January 1985 Pratt petitioned the United

Nations Human Rights Committee under the International

Covenant on Civil and Political Rights.

On 13th March 1986 the appellants lodged notice of

intention to petition for special leave to appeal to the

Judicial Committee of the Privy Council. The application

for special leave was heard with reasonable dispatch and

special leave to appeal was refused by the Judicial

Committee of the Privy Council on 17th July 1986. Rule 5

of the Judicial Committee (General Appellate Jurisdiction)

Rules Order 1982 requires that a petition for special leave

should be lodged as soon as possible after judgment. This

was certainly not done in this case; but the requirement

appears to have been ‘waived without comment.

In dismissing the application Lord Templeman expressed

the concern of the Judicial Committee that three years and

nine months had elapsed between the dismissal of the appeal

and the delivery of the reasons. He said:-

“On Sth December, 1980 the Court of Appeal dismissed

the petitioner's appeal against conviction and the

sentence of death for murder and promised to put their

reasons for so doing in writing. Those reasons were

not delivered until three years and nine months later,

namely on 24th September, 1984. During the whole of

that period the appellant had sentence of death

hanging over him and, of course, no action could be

taken on his behalf, or on behalf of the authorities,

pending the possibility of an appeal to this Board

which could only be considered when those reasons had

been delivered.”

As Rowe P. pointed out in his judgment in the Court of

Appeal this comment was -_ pone accurate and

undoubtedly misled the two international bodies to whom the

appellants petitioned. In practice it is necessary to have

the reasons of the Court of Appeal available at the hearing

of the application for special leave to appeal, as without

them it is not usually possible to identify the point of law or

serious miscarriage of justice of which the appellant

complains. The availability of the reasons is not, however

a condition precedent to lodging an application for special

leave to appeal. Their Lordships have no doubt that if an

application for special leave to appeal had been lodged

together with a request for the reasons they would have

been swiftly delivered as they were when Pratt finally

requested them in 1984. Although it is most regrettable

that the Court of Appeal overlooked the delivery of its

reasons for dismissing the appeal, it is not possible to

attribute the delay in lodging the notice of application for

leave to appeal to the Judicial Committ i

Council to the lack of reasons. sacri taed

On 2st July 1986 the UNHRC re i

quested Jamaica not to

carry out the death sentence on Pratt and Morgan before it

had an opportunity to consider t ibili

complaint . y er the admissibility of the

On 18th November 1986 the JPC, a i

; » apparently for the first

time, considered the appellants’ case. They did not accede

to the request of the UNHRC to stay the execution and the

first warrant of execution was issued on 12

- th

for execution on 24th February. February 1987

On 23cd February the Governor-General issued a stay of

pesoutien. The reasons for the stay are not entirely clear

ut may have been the result of a telegram from the UNHRC

‘Sa -

urging a stay of execution and a letter from Mr. Noel

Edwards Q.C., to the Governor-General informing him

that the case of the appellants was due to be considered

by the UNHRC on 23rd March 1987 and the [ACHR on 26th

March 1987.

The Superintendent of the Saint Catherine District

Prison at that time says in his affidavit that he was

informed of the stay by telephone at 4.30 p.m. on 23rd

February and ten minutes later informed the appellants in

the condemned cell and that as soon as he received

written confirmation about twenty minutes later the men

were removed from the condemned cell and returned to

death row. The appellants in their affidavits say that

they were not informed of the stay until 45 minutes before

they were due to be executed on the orning of 24th

February. This is a dispute which their Lordships

cannot resolve on the affidavit evidence.

On 9th July 1987 the LACHR pursuant to further

representations of Pratt and Morgan informed the

Jamaican government of the following findings: -

“Pratt and Morgan suffered a denial of justice during

the period 1980-1984<violative of Article 5(2) of the

American Convention on Human Rights. The

Commission found that the fact that the Jamaican

Court of Appeal issued its decision on December 5

1980 but did not issue the reasons for that decision

until four years later, September 24, 1984, was

tantamount to cruel, inhuman and degrading

treatment because during that four year delay the

petitioners could not appeal to the Privy Council and

had to suffer four years on death row awaiting

execution.

The Inter-American Commission on Human Rights,

pursuant to its cable of July 7 1987 requests that the

execution of Messrs. Pratt and Morgan be commuted

for humanitarian reasons.”

This decision, as has already been explained was based

on a misunderstanding of the appellants’ right to appeal

to the Judicial Committee of the Privy Council.

On 13th October 1987 the JPC reconsidered the

appellants’ case. They did not accede to the request of

the LACHR and on their advice the second warrant of

execution was issued on 18th February 1988 for execution

on Ist March.

On 29th February 1988 the second stay of execution

was issued by the Governor-General. This time ut

appears to have been as a cesult of a further request

from the UNHRC not to execute the men until the

Committee had completed their review of the case.

On 24th March the UNHRC decided that the appellants’

case was admissible contrary to the submission of the

Jamaican government that the appellants had not yet

exhausted their domestic remedies and requested Jamaica

not to carry out the death sentence until -he Committee had

arrived at their decision on the merits. Their Lordships

observe that it had taken over two years for the Committee

to determine that the case was admissible. The ground

upon which the Jamaican government had opposed the

appellants’ submission is stated in paragraph 6(4) of the

Committee's decision :-

“The State party contends that the authors’

communications are inadmissible because they have

failed to exhaust domestic remedies as required by

Article 5(2) (b) of the Optional Protocol. It points out

that in respect of the authors’ complaints - breach of

the right to trial without undue delay and breach of the

right to protection against subjection to torture or

cruel, inhuman or degrading treatment - it would have

been open to the authors to apply to the Supreme Court

for redress alleging breaches of these fundamental

rights protected by sections 17 and 20(1) of the

Jamaican Constitution respectively.“

Their Lordships find this a puzzling stance to te taken by

the Jamaican government in view of their successful

submission in Riley v. Attorney-General of Jamaica (supra)

that delay in carrying out execution could afford no ground

for holding the execution to be in breach of the Jamaican

Constitution; unless it is perhaps to be construed as an

encouragement to the appellants to challenge the decision in

Riley and seek relief under the Constitution. This,

however, seems to be unlikely in view of the Solicitor-

General's formidable argument before their Lordships in

support of the majority reasoning in Riley. What is certain

is that it added to the delay in the Committee dealing with

the case on the merits.

On 6th April 1989 the UNHRC gave their decision on the

merits. They held that the failure of the Court of Appeal to

deliver reasons for 45 months was a violation of Article 14

para. 3(c) and Article 14 para. 5 of the International

Covenant on Civil and Political Rights and Optional Protocol

which are in the following terms: -

“3. In the determination of any criminal charge against

him, everyone shall be entitled to the following

minimum guarantees, in full equality: ...

5. Everyone convicted of a crime shall have the right

to his conviction and sentence being reviewed by a

higher tribunal according to law.”

The Committee gave the following reasons for their

decision :-

“13.4 The State party has contended that the time

span of three years and nine months between the

dismissa_ of the authors’ appeal and the delivery of

the Court of Appeal's written judgement was

attributable to an oversight and that the authors

should have asserted their right to receive earlier

the written judgement. The Committee considers

that the responsibility for the delay of 45 months lies

with the judicial authorities of Jamaica. This

responsibility is neither dependent on a request for

production by the accused in a trial nor is non-

fulfilment of this responsibility excused by the

absence of a request from the accused. The

Committee further observes that the Privy Council

itself described the delay as inexcusable (see para.

2.3 above).

13.5 In the absence of a written judgement of the

Court of Appeal, the authors were not able to

proceed to appeal before the Privy Council, thus

entailing a violation of article 14, paragraph 3(c),

and article 14, paragraph 5. In reaching this

conclusion it matters not that in the event the Privy

Council affirmed the conviction of the authors. The

Committee notes thatda all cases, and especially in

capital cases, accused persons are entitled to trial

and appeal without undue delay, whatever the

outcome of those judicial proceedings turns out to

lt seems to their Lordships unlikely that the Committee

would have made this finding if they had not been misled

into believing that the delay in giving reasons prevented

an appeal to the Privy Council.

The Committee also found a violation of Article 7 which

provides: -

“No one shall be subjected to torture or to cruel,”

inhuman or degrading treatment or punishment. In

particular, no one shall be subjected without his free

consent to medical or scientific experimentation .“

The Committee gave their reasons as follows: -

“13.6 There are two issues concerning article 7

before the Committee: the first is whether the

excessive delays in judicial proceedings constituted

not only a violation of article 14, but ‘cruel, inhuman

and degrading treatment’. The possibility that such

a delay as occurred in this case could constitute

cruel and inhu.aan treatment was referred to by the

Privy Council. In principle prolonged judicial

proceedings do no per se constitute cruel, inhuman

ovr degrading treatment even if they can be a source

of mental strain for the convicted prisoners.

However, the situation could be otherwise in cases

involving capital punishment and an assessment of

the circumstances of each case would be necessary.

in the pcesent cases the Committee does not find that

the authors have suff iciently substantiated their claim

that delay in judicial proceedings constitutea for them

are inhuman and degrading treatment under article

13.7 The second issue under article 7 concerns the

issue of warrants for execution and the notification of

the stay of execution. The issue of a warrant for

execution necessarily causes intense anguish to the

individual concerned. In the authors case, death

warrants were issued twice by the Governor-General,

first on 13 February -957 aad again on 23 February

1988. It is uncontested that the decision to grant a

first stay of execution, taken at noon on 23 February |

1987, was not notified to the authors until 45 minutes

before the scheduled time of the execution on 24

February 1987. The Committee considers that a delay

of close to 10 hours from the time the stay of execution

was granted to the time the authors were removed from

their death cell constitutes cruel and inhuman

treatment within the meaning of article 7."

The Committee did not know that this allegation was

strenuously denied by the Jamaican government. The

Solicitor—General has told their Lordships that the Jamaican

government did not know that this allegation had been made

to the Committee on behalf of Pratt and Morgan and that if

the government had known of it they would have put in

affidavit evidence denying it. If that had been done their

Lordships surmise that the Committee, like their Lordships,

might have found it difficult to resolve the conflict of

evidence and thus to find a violation of Article 7 on the

ground of delay of notification in the stay of execution.

The Committee made the following recommendation: -

“It is the view of the Committee that, in capital

punishment cases, States parties have an imperative

duty to observe rigorously all the guarantees for a fair

trial set out in article 14 of the Covenant. Although in

this case article 6 is not directly at issue, in that

capital punishment is not per se unlawful under the

Covenant, it should not be imposed in circumstances

where there have been violations by the State party of

any of its obligations under the Covenant. The

Committee is of the view that the victims of the

violations of articles 14, paragraph 3(c), and 7 are

entitled to a remedy; the necessary prerequisite in the

particular circumstances is the commutation of the

sentence.”

Eighteen months then passed before a decision was taken

by the JPC on this recommendation of the UNHRC. Press

reports of Parliamentary proceedings show that in June 1990

the question of the death penalty was under review by the

Cabinet but that no conclusions had yet been reached on

commuting sentences.

On 17th September 1990 the JPC again reconsidered the

appellants’ case. They rejected the recommendations

made eighteen months earlier by the UNHRC. On 18th

February 1991 the warrant of execution was issued for

execution on 7th March 1991, the delay in issuing the

warrant of execution from 17th September 1990 to 18th

February 1991 apparently being accounted for by the

wish of the Governor-General to obtain the Attorney-

General's advice on the legal status of decisions of human

rights bodies. This is advice which it would have been

appropriate to place before the members of the JPC at a

much earlier date, and before they considered any

recommendations of such bodies. Their Lordships have

not seen the Attorney-General's advice but do not doubt

that it correctly advised that, Jamaica being a signatory

to the International Covenant on Civil and Political Rights

and to the Optional Protocoi, the views of the UNHRC

should be afforded weight and respect but were not of

legally binding effect; and that the like considerations

applied to the L[ACHR.

On 28th February 1991 the appellants commenced these

proceedings pursuant to section 25 of the Constitution

and as a result the execution set for 7th March was

stayed. On 14th June the Supreme Court dismissed their

application.

On 8th June 1992 the Court of Appeal dismissed their

appeal and on 18th January 1993 gave leave to appeal to

the Judicial Committee of the Privy Council.

The primary submission of the appellants is that to

hang them after they have been held im prison under

sentence of death for so many years would be inhuman

punishment or other treatment and thus in breach of

section 17(1) of the Constitution.

Section 17 of the Constitution provides: -

“17.-(1) No person shall be subjected to torture or to

inhuman or degrading punishment or other

treatment.

(2) Nothing contained in or done under the

authority of any law shall be held to be inconsistent

with or in contravention of this section to the extent

that the law in question authorises the infliction of

any description of punishment which was lawful tn

Jamaica immediately before the appointed day.”

This submission cannot succeed unless their Lordships

are pecsuaded to prefer the construction of section 17(2)

adopted by the munority in Riley v. A.C. of Jamica to

that of the majority. The five appellants in A&tley had

been sentenced to death and held in custody for between

six and seven years before their appeal was heard by the

Privy Council. They submitted that to execute them al tec

such a prolonged delay would contravene Chew rights

undas sem 17(1) of the Constitution. By a majority the

atone A eg ejected this submission because they

. cu section 17(2) as authorising execution by

anging for murder no matier how long the delay between

the passing of the sentence and th :

of Harwich said at page 726: - e execution. Lord Bridge

“The question, therefore, is whether the d

execution of a sentence of death by hanging, Bana

it could otherwise be described as ‘inhuman or

degrading punishment or other treatment’ - a question

on which their Lordships need express no opinion - can

escape the unambiguous prohibition imposed bv the

words in section 17(2) emphasised as follows: _

‘Nothing contained in or done under th

of any law shall be held to be inconsis a uthes

in contravention of this section to the extent that

the law in question authorises the infliction of any

description of punishment which was lawful in

Jamaica immediately before the appointed day.'

An act will fall within this prohibition if it satisf

three related conditions, viz.: (a) it must be an aa

done under the authority of law; (b) it must be an act

involving the infliction of punishment of-adescription

authorised by the law in question, being a description

of punishment which was lawful in Jamaica immediately

before the appointed day; (c) it must not exceed in

extent the description of punishment so authorised.

There can be no doubt whatever that

execution would satisfy conditions (a) and Ag

only words in section 17(2) that are even arguably

ambiguous are the words ‘to the extent that’. It seems

to their Lordships that in their context these words

pose the question: to what extent did the law in

; Jamaica before independence authorise the description

of punishment which is under challenge? This question

can only be answered by asking in turn the further

question: if the like description of punishment had

been inflicted in the like circumstances before

independence, would this have been authorised by law?

An obvious instance of a description of punishment

exceeding in extent that authorised by law would be

the execution of a death sentence by burning at the

stake. But since the legality of a delayed execution by

hanging of a sentence of death lawfully imposed under

section 3(1) of the Offences against the Person Act

could never have been questioned before

independence, their Lord sen

it satisfies condition (c) yo tI =

reasons for oc length of delay in executing a sentence

of death lawfully imposed, the delay can afford no

ground for holding the execution t

ae eantten 17) o be a contravention

This construction of section 17(2) focuses on the act of

punishment, and proceeds upon the assumption that the

legality of a long delayed execution could never have

been questioned before independence. Their Lordships,

having had the benefit of much fuller argument, cannot

accept that there could have been no challenge toa long

delayed execution before independence and for the

reasons already given are satisfied that such an

execution could hewe been stayed as an abuse of process.

The due process « law does not end with pronouncement

of sentence - see Abbott v. Attorney-General of Trinidad

and Tobago (1979) 1 W.L.R. 1342.

The minority, who would have allowed the appeal,

adopted a narrower construction of section 17(2) which

limited the scope of the sub-section to authorising the

passing of a judicial sentence of a description of

punishment lawful in Jamaica before independence and

they held it was not concerned with the act of the

executive in carrying out the punishment.

Their-Lordships are satisfied that the construction of

section 17(2) adopted by the minority is to be preferred.

The purpose of section 17(2) is to preserve all

descriptions of punishment »lawful immediately before

independence and to prevent them from being attacked

under section 17(1) as inhuman or degrading forms of

punishment or treatment. Thus, as hanging was the

description of punishment for murder provided by

Jamaican law immediately before independence, the death

sentence for murder cannot be held to be an inhuman

description of punishment for murder.

Section 17(2) does not address the question of delay

and is not dealing with the problem that arises from delay

in carrying out the sentence. The primary purpose of

the Constitution was to entrench and enhance pre-

existing rights and freedoms, not to curtail them. Before

independence the law would have protected a Jamaican

citizen from being executed after an unconscionable

delay, and their Lordships are unwilling to adopt a

construction of the Constitution that results in depriving

Jamaican citizens of that protection.

The majority also relied upon the judgment of the Board

in de Freitas v. Benny (1976) A.C. 239. In that case

which concerned the construction of the Constitution of

Trinidad and Tobago the time scale was wholly different

from the present case. The appellant had been sentenced

to death in August 1972 and his constitutional appeal was

heard and determined by the Privy Council in May 1975.

Their Lordships in de Freitas v. Benny said that they

had difficulty in formulating the appellants’ argument

based on delay: but it appears to have been founded

upon a submission that as the time between sentence and

execution was before independence on average five

months, an execution that involved a delay longec than

this was open to attack as cruel and unusual punishment .

Their Lordships dismissed this argument without calling on

the respondents. Both the argument and the extent of the

delay are so different from the present appeal that their

Lordships are unable to gain any assistance from this

decision.

Their Lordships will therefore depart from Riley and hold

that section 17(2) is confined to authorising descriptions of

punishment for which the court may pass sentence and does

not prevent the appellant from arguing that the

circumstances in which the executive intend to carry out a

sentence are in breach of section 17(1).

The Court of Appeal rightly held that they were bound by

the majority decision in Rileyand ‘/d not therefore consider

whether the appellants had been subjected to inhuman or

degrading punishment or treatment within the meaning of

section 17(1). It is however to this question which is

central to this appeal that their Lordships must now turn.

There is an instinctive revulsion against the prospect of

hanging a man after he has been held under sentence of

death for many years. What gives rise to this instinctive

revulsion? The answer can only be our humanity; we

regard it as an inhuman act to keep a man facing-the agony

of execution over a long extended period of time. But

before their Lordships condemn the act of execution as

“inhuman or degrading punishment or other treatment”

within the meaning of section 17(1) there are a number of

factors that have to be balanced in weighing the delay. If

delay is due entirely to the fault of the accused such as an

escape from custody or frivolous and time wasting resort to

legal procedures which amount to an abuse of process the

accused cannot be allowed to take advantage of that delay

for to do so would be to permit the accused to use

illegitimate means to escape the punishment inflicted "pon

him in the interest of protecting society against crime.

A much more difficult question is whether the delay

occasioned by the legitimate resort of the accused to all

available appellate procedures should be taken into account,

or whether it is only delay that can be attributed to the

shortcomings of the State that should be taken into account.

There is a powerful argument that it cannot be inhuman

or degrading to allow an accused every opportunity to

prolong his life by resort to appellate procedures however

extended may be the eventual time between sentence and

execution. This is the view that currently prevails in some

States in the United States of America and has resulted in

what has become known as the death row phenomenon where

men are held under sentence of death for many years while

their lawyers pursue a multiplicity of appellate procedures.

Powerf ul statements in support of this point of view appear

in the opinion of Circuit Judge O'Scannlain in Richmond v.

Lewis (1990) 948 F. 2d. 1473, a decision of the United States

Couct of Appeals for the Ninth Circuit, and in the judgment

of La Forest J. in Kindler v. Canada (Minister of Justice)

——-

(1991) 67 C.C.C. (3d) 1, a decision of the Supreme Court

of Canada. A further vaiuabie analysis of tne decisions

in the United States Courts appears in the judgment or

the Supreme Court of Zimbabwe in Catholic Commisston

for Justice and Peace in Zimbabwe v. The Attorney

General and Others (Judgment No. S.C. 73/93,

unreported, delivered on 24th June 1993).

Support for this view is also to be found in previous

decisions of the Privy Council. In Abbott v. A.G. of

Trinidad and Tobago {1979}; 1 W.L.R. i342 an

unsuccessful appeai against the death sentence was made

upon the ground that the period of eight months taken to

reject the petition for reprieve infringed the appeilant's

constitutional rights. The appeal was heara by the Privy

Council on 4th April 1979 nearly six years after the

convicuon on 16th July i973. In delivering the judgment

of the Board, Lord Diplock said at page 1345:-

“That so long a total period should have been allowea

to elapse between the passing of a death sentence

and its being carried out is, in their Lordships"

view, greatly to be deplored. It brings the

administration of criminal justice into disrepute

among law-abiding citizens. Nevertheless their

Lordships doubt whether it is realistic to suggest

that from the point of view of the condemned man

himself he would wish to expedite the final decision

as to whether he was to die or not uf he thought that

there was a serious risk that the decision would be

unfavourable. While there's life, there's hope. At

any rate, as inde Freitas v. Benny {1976] A.C. 239,

it has to be conceded that the applicant cannot

complain about the delay totalling three years

preceding his petition for pardon caused by nis own

action in appealing against his conviction oc about

the delay cotaliing two years suDsequent to the

rejection of his petition caused by his own action in

appealing against tne sentence on constitutional

grounds. His case as advanced before their

Lordships has depended solely on the period of

somewhat less than eight months sandwiched between

the two longer periods, which was ailowed by the

state to elapse between the lodging of his petition for

pardon and its reicction by the President. This it is

claimed amounted to deiay so inordinate as to involve

a contravention of his constitutional rights."

In Rtley Lord Bridge of Harwich said at page 724:-

“Apart from the delays necessarily occasioned by the

appeliate procedures pursued dy tne applicant (of

which it couid hardly lie in any applicant's mouth to

compiain) .“

Lord Scarman anda Lord Brightman concluded their

dissenting judgment by saying at page 736:-

“?rolonged delay when it arises from factors outside the

controi of the condemned man can render a decision to

carry Out the sentence of death an inhuman and

degrading punishment. it is, of course, for the

applicant for constitutional protection to shew that the

delay was inordinate, arose from no act of nis, and was

likely to cause such acute suffering that the infliction

of the death penalty would be in the circumstances

which had arisen inhuman or degrading.”

However, in an earher passage of their judgment at page

73S Lord Scarman and Lord Brightman said:-

“It is, of course, true that a period of anguisn and

suffering is an inevitable consequence of sentence of

death. But a proiongation of it beyond the time

necessary for appeai and consideration of reprieve is

not. And it is no answer to say that the man will

struggie to stay alive. in truth, it is this ineradicable

human desire which makes prolongation inhuman and

degrading.“

Their Lordships are therefore doubtful whether Lord

Scarman and Lord Brightman would have regarded delay

caused by appeals made within the time scale permitted by

the State as time to be left out of account in cémputing the

total period of delay.

There are other authoriues which do not accept that

delay occasioned by use of appeal procedures is to be

disregarded. in Catholic Commission for Justice and

Peace in Zimbabwe v. Attorney-General (supra) Gubbay

C.J. said:-

“It seems to me highiy artificial and unrealistic to

discount the mental agony and torment experienced on

death row on the basis that by not making the maximum

use of the judicial process available the condemned

prisoner would have shortened and not lengthened his

suffering. The situation could be otherwise if he had

resorted to a series of untenable and vexatious

proceedings which, in consequence, had the effect of

delaying the ends of justice.”

.And he expressed his dissent from the contrary view

contained in Abbott v. A.G. of Trinidad and Tobago and

Others.

In Soering v. United Kingdom (1989) 11 E-H.R.R. 439 the

applicant, a West German national, alleged that the decision

by the Secretary of State for the Home Department to

extradite him to the United Statés of America to facc trial in

Virginia on a charge of capital murder would, if

implemented, give cise to a breach by the United Kingdom

of Article 3 of the European Convention for the Protection

of Human Rights and Fundamental Freedoms (Cmd. 8969)

which provides that no one should be subjected to torture

or to inhuman or degrading treatment or punishment.

o~_

The United States had applied to the United Kingdom

to extradite the applicant to stand trial in the State of

Virginia on a charge of capital murder. The European

Court of Human Rights recognised that the death row

phenomenon in Virginia where prisoners were held for a

period of six to eight years before execution arose from

repeated applications by the prisoner for a stay of

execution but nevertheless held that such a long period

of delay might go beyond the threshold set by Article 3.

In India, where the death penalty is not mandatory,

the appellate court takes into account delay when

deciding whether the death sentence should be imposed.

In Vatheeswaran v. State of Tamil Nadu [1983] 2S.C-.R.

348 Chinnappa Reddy J. said at page 353:-

“While we entirely agree with Lord Scarman and Lord

Brightman about the dehumanising effect of

prolonged delay after the sentence of death, we

enter a little caveat, but only that we may go

further. We think that the cause of the delay is

immaterial when the sentence is death. Be the cause

for the delay, the time necessary for appeal and

consideration of reprieve or some other cause for

which the accused himself may be responsible, it

would not alter the dehumanising character of the

delay ."

The court held that delay exceeding two years in the

execution of a sentence of death should be sufficient to

entitle a person under sentence of death to demand the

quashing of his sentence on the ground that it offended

against Article 21 of the Indian Constitution which

provides “No person shall be deprived of his life or

personal liberty except according to procedure

established by law".

In Sher Singh and Others v. The State of Punjab

[1983] 2 S.C.R. 582 the court held:-

“Prolonged delay in the execution of a death sentence

is unquestionably an important consideration for

determining whether the sentence should be allowed

to be executed. But no hard and fast rule that

‘delay exceeding two years in the execution of a

sentence of death should be considered sufficient to

entitle the person under sentence of death to invoke

Article 21 and demand the quashing of the sentence

of death’ can be laid down as has been in

Vatheeswaran.“

The court pointed out that to impose a strict time limit of

two years would enable a prisoner to defeat the ends of

justice by pursuing a series of frivolous and untenable

proceedings.

In Smt. Treveniben v. State of Gujarat (1989) 1

S.C.J. 383 the Supreme Court of India approved the

judgment in Sher Stngh v. The State of Punjab and held

that a sentence of death wmposed by the “Apex Court”,

which wiil itseif nave taken into account delay when

imposing the death sentence, can only be set aside

thereafter upon petition to the Supreme Court upon grounds

of delay occurring after that date. Oza J. said, at page

410:- ;

“Lf, therefore, there is inordinate delay in execution,

the condemned prisoner is entitled to come to the court

requesting to examine whether, it is just and fair to

aliow the sentence of death to be executed.”

In their Lordships’ view a State that wishes to retain

capital punishment must accept the responsibility of

ensuring that execution follows as swiftly as practicable

after sentence, allowing a reasonable time for appeal and

consideration of reprieve. It is part of the human condition

that a condemned man will take every opportunity to save

his life through use of the appellate procedure. If the

appellate procedure enabies the prisoner to prolong the

appellate hearings over a period of years, the fault is to be

attributed to the appellate system that permits such delay

and not to the prisoner who takes advantage of it.

Appellate procedures that echo down the years are not

compatible with capital punishment. The death row

phenomenon must not become established as a part of our

jurisprudence.

The application of the appellants to appeal to the Judicial

Committee of the Privy Council and their petitions to the two

human rights bodies do not fall within the category of

frivolous procedures disentitling them to ask the Board to

look at the whole period of delay in this case. The total

period of delay is shocking and now amounts to almost

fourteen years. It is double the time that the European

Court of Human Rights considered would be an infringement

of Article 3 of the European Convention and their Lordships

can have no doubt that an execution would now be an

infringement of section 17(1) of the Jamaican Constitution.

To execute these men now after holding them in custody

in an agony of suspense for so many years would be

inhuman punishment within the meaning of section 17(1).

In the last resort the courts have to accept the

responsibility of saying whether the threshold has been

passed in any given case and there may be difficult

borderline decisions to be made. This, however, is not a

borderline case. The delay in this case is wholly

unacceptable and this appeal must be ailowed.

In arriving at this conciusion their Lordships do not

overlook the reliance placed by the Solicitor—General on the

dissenting judgment of Sir Gerald Fitzmaurice in The

Republic of Ireland v. The United Kingdom (1978) 2

E-H.R.R. 25, 120 but prefer an interpretation of the

Constitution of Jamaica that accepts civilised standards of

behaviour which will outlaw acts of inhumanity, albeit they

fall short of the barbarity of genocide.

Section 25(2) of the Constitution provides that: -

“The Supreme Court shall have origina! jurisdiction to

hear and determine any application made by any

person in pursuance cf subsection (1) of this section

and may make such orders, issue such writs and

give.such directions as it may consider appropriate

foc the purpose of enforcing, or securing the

enforcement of, any of the provisions of the said

sections 14 to 24 (inclusive) to the protection of

which the person concerned is entitled.”

The width of the language of this subsection enables

the court to substitute for the sentence of death such

order as it considers appropriate. The appropriate order

in the present case is that the sentence of death of eacn

appellant should be commuted to life imprisonment.

Their Lordships are very conscious that many other

prisoners under sentence of death are awaiting the

outcome of this appeal. In an attempt to assist tne

Jamaican authorities who may be faced with a large

number of appeals their Lordships wish to«make some

general observations.

The delay in this case would never have reached

anything like its present dimensions if the Governor-

General and the JPC had reviewed the case pursuant to

sections 90 and 91 of the Constitution early in 1981 after

the Court of Appeal had dismissed the appellants’

application for leave to appeal. As has already been

pointed out, there was no reason why the case should not

have been reviewed at that time and it appears inevitable

in the light of after events that the JPC would have

advised that the execution should proceed and a date

would have been set. This would have provided the

impetus for an immediate application to the Judicial

Committee of the Privy Council which would have been

disposed of in the summer of 1981 and a new execution

date set within a matter of weeks. If this had occurred,

the grounds upon which the two human rights bodies

recommended commutation of sentence to life imprisonment

would never have arisen, because the Court of Appeai

wouid have been prompted to deliver their reasons by the

application to the Judicial Committee of the Privy Council

and the execution would have taken place years before

the late reprieve of which the appellants have

complained.

There may of course be circumstances which will lead

the JPC to recommend a respite in the carrying out of a

death sentence, such as a poiitical moratorium on the

death sentence, or a petition on behalf of the appeliants

to [ACHR oc UNHRC or a constitutional appeal to the

Supreme Court. But if these respites cumulatively result

in delay cunning into several years an execution will be

likely to infringe section 17(1) and call for commutation

of the death sentence to life imprisonment.

Their Lordships are very couscious that the Jamaican

government faces great difficullies with a disturbing

murder rate and limited financial resources at their disposal

to administer the legal system. Nevertheless, if capital

- punishment is to be retained it must be carried out with all

possible expedition. Capital appeals must be expedited and

legal aid allocated to an appellant at an early stage. The

aim should be to hear a capital appeal within twelve months

of conviction. The procedure contained in the Governor-

General's Instructions should be reinstated so that the IPC

consider the case shortly after the Court of Appeal hearing

and if an execution date is set and there is to be an

application to the Judiciai Committee of the Privy Council it

must be made as soon as possible, as both the rules of the

Judicial Committee of the Privy Council and the Governor-

General's Instructions require, in which case it should be

possible to dispose of it within six months of the Court of

Appeal hearing or within a further six months u there is to

be a full hearing of the appeal. In this way it should be

possible to complete the entire domestic appeal process

within approximately two years. Their Lordships do not

purport to set down any rigid timetable but to indicate what

appear to them to be realistic targets which, if achieved,

would entail very much shorter delay than has occurred in

recent cases and could not be considered to involve inhuman

or degrading punishment or other treatment.

The final question concerns applications by prisoners to

IACHR and UNHRC. Their Lordships wish to say nothing

to discourage Jamaica from continuing its membership of

these bodies and from benefiting from the wisdom of their

deliberations. It is reasonable to allow some period of delay

for the decisions of these bodies in individual cases but it

should not be very prolonged. The UNHRC does not accept

the complaint unless the author “has exhausted all available

domestic remedies". The UNHRC has decided in this case

and in Carlton-Reid that a constitutional motion to the

Supreme Court of Jamaica is not a remedy to which the

complainant need resort before making an application to the

Committee under the Optional Protocol. A complainant will

therefore be able to lodge a complaint immediately after his

case has been disposed of by the Judicial Committee of the

Privy Council. If, however, Jamaica is able to revise its

domestic procedures so that they are carried out with

reasonable expedition no grounds will exist to make a

complaint based upon delay. And it is to be remembered

that the UNHRC does not consider its role to be that of a

further appellate court:-

“The Committee observes that it is generally for the

appellate courts of States parties to the Covenant and

not for the Committee to evaluate the facts and

evidence placed before domestic courts and to review

the interpretation of domestic law by national courts.

Similarly, it is for the appellate coucts and not for the

Committee to review specific instructions to the jury by

the judge, unless it is apparent from the author's

submission that the instructions to the jury were

-_—

ciearly arbitrary or tantamount toa denial of justice,

or that the judge manifestly violated his obligation of

impartiality.”

lt therefore appears to their Lordships that provided

there is in future no unacceptable delay in the domestic

proceedings complaints to the UNHRC from Jamaica shoulda

be infrequent and when they do occur it should be

possible for the Committee to dispose of them with

reasonable dispatch and at most within eighteen months.

These considerations lead their Lordships to the

conclusion that in any case in which execution is to take

place more than five years after sentence there will be

strong grounds for believing that the delay is such as to

constitute “inhuman or degrading punishment or other

treatment". If, therefore, rather than waiting for ail

those prisoners who have been in death row under

sentence of death for five years or more to commence

proceedings pursuant to section 25 of the Constitution,

the Governor-General now refers all such cases to the

JPC who, in accordance with the guidance contained in

this advice, recommend commutation to life imprisonment,

substantial justice will be achieved swiftly and without

provoking a flood of applications to the Supreme Court

for constitutionai relief pursuant to section 17(1).

The appellants pursued alternative grounds of appeal

upon which thew Lordships find it unnecessary to

express any conclusions.

Their Lordships will accordingly humbly advise Her

Majesty that this appeal ought to be allowed, and the

sentences of the appellants be commuted to life

imprisonment.

AFFIDAVIT IN SUPPORT OF A MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Crarencte LAcKEeY being first duly sworn, depose and say

that I am the Petitioner in the above- entitled case; that in support of my

motion to proceed without being required to repay fees, costs or give

security therefor, I state that because of my poverty I am unable to pay

the costs cf this case or to give security therefor; and that I believe I

CLARENCE LACKEY am entitled to redress.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1994

I further swear that the responses which I have made to the questions

Segstsener, and instructions below relating to my ability to pay the cost of proceeding

v. in this Court are true.

STATE OF TEXAS 1. Are you presently employed? Yes wo X

Respondent. a. If the answer is yes, state the amount of your salary or wages per

month and give the name and address of your employer.

b. If the answer is no, state the date of your last employment and the

amount of the salary or “GUS per "F420, which yo eceived.

MOTION TO PROCEED IN FORMA PAUPERIS m

2. Have you received within the past twelve months any income from a

Petitioner Clarence Lackey, an indigent, respectfully moves business, profession or other form of self-employment, or in the fo

of rent payments, interest, dividends or other sources? Yes No

this Court for leave to file the attached Petition for Writ of ,

a. If the answer is yes, describe each source of income and state the

Certiorari without costs and to proceed in forma pauperis in this amount received from each during the past twelve months.

Court. An affidavit of indigency is attached hereto. 3. Do you own any cash or checking or savings account? Yes wo X

If the answer is yes, state the total value of the items owned:

Respectfully submitted,

4. Do you own any real estate, stocks, bonds, notes, automobiles, or

WH « 0 Wee | other valuable property (excluding ordinary household furnishings and

* Robert C. Owen Age {~'g clothing)? Yes No

Brent E. Newton

Texas Resource Center YS « Nkntorn_ a. If the answer is yes, describe the property and state its approximate

3223 Smith Street value.

Suite 215

Houston, Texas 77006 5. List the persons who are depending upon you for support and state your

(713) 522-5917 relationship to those persons. NE

fax: (713) 522-2733

I understand that a false statement or answer to any question in this

* Counsel of Record affidavit will subject me to penalties for perjury.

/s/ rf

Subscribed and sworn to before me this 22 day we Sot 19 94.

Che Wd urcroche

Notary

My commission expires + hen ~~ -93 '

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.