This bad lawyering would have gotten nowhere were it not for bad science. In 2005, the British medical journal The Lancet reported that blood samples taken from executed prisoners showed concentrations of barbiturate that "were lower than that required for surgery in 43 of 49 executed inmates." To their credit, the justices were aware that the so-called study was stacked. Blood samples were taken several hours to days after execution.
Where does Roberts' ruling leave California? In 2006, U.S. District Judge Jeremy Fogel stayed executions in California after entertaining an appeal against the three-drug protocol filed for convicted murderer/rapist Michael Morales.
Dane Gillette, a senior assistant attorney general, expects the ruling to "resolve the Morales federal litigation." (It's too bad a Marin County judge ruled in October that the new protocol proposed to meet Fogel's concerns must be stalled to accommodate public comment.)
While the ACLU is unhappy with the ruling, ACLU donors should rejoice. Now the civil-rights group can save its money for appeals representing innocent clients -- instead of on laughable briefs that bring credit to no one. Not even the likes of Baze and Bowling.
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