Academic journal article Fordham Urban Law Journal

In the Eye of the Storm: A Judge's Experience in Lethal-Injection Litigation

Academic journal article Fordham Urban Law Journal

In the Eye of the Storm: A Judge's Experience in Lethal-Injection Litigation

Article excerpt


The case of Morales v. Tilton, (1) which challenges the constitutionality of California's lethal-injection protocol for executions, is unique among the many thousands of disputes over which I have presided in more than twenty-six years as a federal and state judge. It has demanded the most from me--intellectually, emotionally, and spiritually--of any matter that ever has appeared on my docket. While I may not comment on the merits of the case because it is still pending before me, (2) I am hopeful that those who read this Article will find my personal experience of interest, as a commentary on the workings of our legal system, a meditation on being a judge, and a reflection upon the potency of the death penalty as an issue in our society.

This Article focuses on five aspects of my personal experience. Part I reviews the history of my involvement with lethal-injection litigation--beginning in 2004 with the case of Cooper v. Rimmer (3)and how what I initially viewed as a far-fetched, entirely hypothetical argument about the potential risks of lethal injection came to concern me enough that I enjoined an execution. Part II discusses the cultural divide between the judiciary and the state bureaucracy that is responsible for carrying out executions, and the ways in which that divide has affected both the Morales case in particular and California's efforts to address questions concerning its lethal-injection protocol generally. Part III concerns the role and response of the news media in Morales and other lethal-injection cases. This Part also describes the anomalous experience of being a central figure in a major news story while at the same time being unable for ethical reasons to make any substantive comment about it. (4) Part IV discusses the reaction of the non-lawyer public to the lethal-injection controversy, and how the deep differences within public opinion about the death penalty overshadow and skew any discussion of the issues that legal challenges to lethal injection actually present. Part V discusses the ways in which Morales has affected my understanding of myself as a judge and as a person.


A. Cooper v. Rimmer (5)

Kevin Cooper was a convicted multiple-murderer who for many years had been pursuing habeas corpus proceedings based on a claim of innocence. (6) His habeas case had attracted significant media attention and was the latest flashpoint in California's ongoing debate about capital punishment. (7) On February 2, 2004, eight days before his scheduled execution date, Cooper filed a civil-rights claim under 4:2 U.S.C. [section] 1983, claiming that California's lethal-injection protocol was unconstitutional because it created an undue risk that the person being executed would experience excruciating pain. (8) Cooper sought a temporary restraining order to prevent his execution. (9) Because all executions in California are carried out at San Quentin State Prison, which is located in the Northern District of California, Cooper filed the case in our court. I drew the case by random assignment.

My immediate reaction to Cooper's claims was extremely skeptical. Having been a judge for so long in a state in which capital punishment has been so controversial that three justices of the state supreme court were voted out of office because of their perceived bias against the death penalty, (10) I instinctively questioned the timing and context of Cooper's suit. In more than a decade of unending litigation since his conviction, Cooper had never challenged the constitutionality of California's method of execution. Further, because a serious inquiry into the factual basis of his lethal-injection claims could not possibly be completed within eight days, a decision even to conduct such an inquiry would require a stay of execution. Virtually all of the public statements made on Cooper's behalf focused on his claim of innocence, not the means by which he would be executed. …

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