A Tennessee death row inmate, Sedley Alley, on Tuesday asked the Supreme Court to block his scheduled execution for 1 a.m. Wednesday, as he raised a challenge to the chemical protocol used in Tennessee for executions. The case of Alley v. Little (05-10959) thus becomes the second of two cases from Tennessee on that issue. The other case, Abdur’Rahman v. Bredesen (05-1036) is scheduled for consideration by the Court at its private Conference on Thursday, according to the Court’s electronic docket. The two cases illustrate anew the increasingly complex puzzle the Court faces amid the increasing number of challenges to lethal injection execution methods, and a rising number of cases over the procedural issue of how inmates may pursue such challenges.
The Court has consistently refused in recent months to hear any direct challenge to the lethal injection protocol, but it is now reviewing the separate though related question of the process by which state death row inmates may make such challenges. That issue is before the Court in a Florida case, Hill v. McDonough (05-8794), which was argued on April 26; a decision is expected in that case in the next several weeks.
The Court, however, has not been consistent in its actions on requests to postpone executions in cases in which the lethal injection issue has been raised. Five judges on the Sixth Circuit Court, in comments earlier Tuesday in Sedley Alley’s case, remarked that “in some instances stays are granted, while in others they ae not and the defendants are executed, with no principled distinction to justify such a result….This adds another arbitrary factor into the equation of death and thus far, there has been no logic behind the Supreme Court’s decision as to who lives and who dies.”
Those remarks came as those five judges dissented when the Sixth Circuit, en banc, refused by an 8-5 vote to stay Alley’s scheduled execution. There was no opinion from the majority in response to the dissent. But, a panel of the Sixth Circuit, in a 3-0 ruling last Friday, cleared the way for Alley’s execution early Wednesday. It refused to delay the execution while the Supreme Court considers the procedural question in the Hill case. The panel assumed that Alley could challenge the execution protocol, but then proceeded to reject that challenge on the merits. “No federal court has found the lethal injection protocol as such to be unconstitutional,” the panel remarked. “We will not do so today.” The panel decision can be found here, and the order and dissent on the question of en banc review of the stay issue can be found here.
Alley faces execution after being convicted of the 1985 rape and murder of a 19-year-old Marine corporal, Suzanne M. Collins, at the Millington Naval Air Station outside Memphis.
Further complicating the Court’s review of the Tennessee situation is a separate appeal by Alley (docket 05-10958), with a separate request for a stay of the execution. That appeal asked the Court to preserve DNA evidence that he claims will support his claim of innocence of the 1985 crime. Alley has filed a civil rights lawsuit in federal court to force release of evidence so that it could be tested for DNA in order to “establish his legal innocence.” Meanwhile, Alley has asked Justice John Paul Stevens, as Circuit Justice, to order the preservation of the DNA evidence. That is separate from his appeal on that issue. Alley also lost on that point in the Sixth Circuit.
Later on Tuesday, Alley’s lawyers filed a third new petition, Alley v. Bell (05-10960), raising procedural issues about his ability to bring a habeas challenge to the conduct of prosecutors and substantive issues about the prosecution’s alleged withholding of evidence favorable to him in his habeas proceeding. That, too, was accompanied by a request for a stay of execution.
CLICK HERE FOR FULL VERSION OF THIS STORY