The high court made a controversial ruling on a drug implicated in botched executions. Photo: Getty
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The lethal injection ruling that takes America another step away from banning executions

Has a recent Supreme Court ruling made it harder to defend people on death row?

UPDATE 15/7/15

David Zink was executed by the state of Missouri yesterday at 19:41. 

Sindel said: 

These cases are always very difficult. You’re dealing with a man 14 years after the crime. 14 years different. He’s not the same person he was. You can’t really stop the feelings and emotion that goes with that sometimes. We were optimistic, perhaps mistakenly so.

We saw Zink yesterday. He had become religious. He was a regular reader of the bible and he said he hoped there could be forgiveness for what he had done. He apologised to the victim’s family. He’d become resigned to what was going to happen.


Next week is the year anniversary of Joseph Wood’s execution. A convicted murderer, he was given a cocktail of drugs by the state of Arizona – a lethal injection. It took two hours for him to die. It was the third highly problematic execution in 2014, after the similarly harrowing deaths of Dennis McGuire in Ohio and Clayton Lockett in Oklahoma.

The execution induced wildly different reactions from states. Arizona suspended its death penalty programme. Utah re-introduced the option of execution by firing squad. Nebraska outlawed the death penalty completely earlier this year.

They were all responding, at least in part, to the same possibility  that the lethal injection in America would be ruled as unconstitutional. Last month that very nearly happened.

On 29 June, the Supreme Court ruled in the case of Glossip vs Gross. Three Oklahoma inmates on death row argued that the use of Midazolam – used in the three bungled executions last year – should be ruled as a “cruel and unusual punishment”. The eighth amendment of the American constitution expressly forbids this. They lost by five votes, to four.

Crucially, however, the details of the ruling have consequences for attorneys defending people on death row up and down the country. 

Rick Sindel and Kay Parish represent death row inmate David Zink. In 2001, he murdered 19-year-old Amanda Morton after he had rear-ended her car off a freeway in Missouri. After raping her he admitted to strangling Morton and then cutting her spinal cord so that she would “remain that way”. He buried her body in a graveyard. The state of Missouri has set his date of execution for 14 July – tomorrow.

David Zink is due to be executed this week.

His legal team are in the last stages of appeal. His confession means that their main focus falls on the type of drugs that Missouri intends to use to kill Zink.

Sindel and Parish are one of the first, if not the first, lawyers who have to work with the ramifications of the Supreme Court’s ruling.

The most notable problem they have is with a specific judgement – that lawyers using the “cruel and unusual punishment” defence must suggest an alternative form of execution that is not cruel and unusual. Or as Parish says “lawyers must tell a court how to kill our clients”.

It puts lawyers like Sindel and Parish, who are viscerally against capital punishment, in a difficult position.

“It’s a pretty nasty ruling in my opinion, and one that puts those of us trying to prevent our clients from being forcibly subject to this human experimentation in quite an ethical quandary”, says Parish.

The decision suggests that method x cannot be cruel and unusual because you have not explained a better method. Or to put it another way, it asks people who believe that all methods of execution are cruel and unusual to accept the court’s contention that there are humane and dignified forms of execution.

After much deliberation Zink’s team decided last week not to suggest an alternative form of capital punishment.

It’s left Sindel and Parish in a fairly desperate position. Previously they had argued that Missouri’s lethal agent – a form of “pentobarbital” was illegal. They claimed the drug was made by an unknown compounding pharmacy and was a “copy” of an FDA-approved drug, rather than a directly approved agent.

David Zink (left) as a young child.

They also put forward the argument that the method of execution violated state and federal controlled substance laws because the compounded pentobarbital is procured by an invalid “prescription”  written by a doctor who is contractually-bound to write the prescription and who conducts no medical examination.

It didn’t work.

As a result, another lawyer has decided to take one last roll of the dice. Justin Gelfand is an attorney with a very different legal specialism to Sindel and Parish. He’s a former federal tax prosecutor. Counterintuitively he thinks he might be able to save Zink’s life using his own specialisms in tax law.

Gelfand has prepared a public interest lawsuit using an obscure law, a Taxpayers Suit. The law has never been used in this context in Missouri legal history. It allows an action to be brought by a private individual to prevent state or federal government from unlawfully diverting public funds. It is generally used in cases of corruption or impropriety. It’s been filed by four (carefully chosen) plaintiffs, including a former member of the Missouri Senate and a Catholic nun, no less.

They argue that the suit “is not about the general legality of the death penalty in Missouri or elsewhere,” but has been filed because “Missouri public officials responsible for overseeing and administering executions are violating federal and state law using the tax dollars of hardworking Missourians.” 

The suit makes particular reference to arguments made by Sindel, Parish and others  that the state of Missouri’s use of compound pentobarbital is illegal – arguments that had previously been dismissed by Missouri courts.

The hearing for the lawsuit will continue today, less than 24 hours before Zink’s execution date. We’ll know by tomorrow whether it’s been successful, though as it’s never been used before it’s a bit of a long shot. It marks the penultimate day of years of appeals that have fallen on deaf ears in Missouri courts.

The Supreme Court’s decision won’t stop lawyers like Sindel and Parish, but it does make their lives harder. “There are those of us who just won’t give up as long as there is breath in our bodies”, says Sindel. It’s the language of hope, perhaps, over expectation. 

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US election 2016: Trump threatens to deny democracy

When asked if he would accept the result of the election, the reality TV star said that he would have to “keep you in suspense.”

During this insane bad-acid-trip of an election campaign I have overused the phrase “let that sink in.”

There have been at least two dozen moments in the last 18 months which I have felt warranted a moment of horrified contemplation, a moment to sit and internalise the insanity of what is happening. That time a candidate for president brought up his penis size in a primary election debate, for one.

But there was a debate last night, and one of the protagonists threatened to undermine democracy in the United States of America, which throws the rest of this bizarre campaign into stark relief.

It was the third and final clash between an experienced if arguably politically problematic former senator and secretary of state – Hillary Clinton –  and a reality TV star accused of a growing number of sexual assaults – Donald Trump – but the tone and content of the debate mattered less than what the latter said at one key, illuminating moment.

That statement was this: asked if he would accept the result of the election, Donald Trump said that he was going to “look at it at the time,” and that he would have to “keep you in suspense.”

If your jaw just hit the floor, you have responded correctly. The candidate for the party of Lincoln, the party of Reagan, the party of Teddy Roosevelt, declined to uphold the most fundamental keystone of American democracy, which is to say, the peaceful transition of power.

Let that sink in. Let it sit; let it brew like hot, stewed tea.

This election has been historic in a vast number of ways, most important of which is that it will be, if current polling is to be believed, the election which will bring America's first female president to the White House, almost a century after women's suffrage was enabled by the 19th amendment to the constitution in August 1920.

If the last near-century for women in America has been a journey inexorably towards this moment, slowly chipping away at glass ceiling after glass ceiling, like the progression of some hellish video game, then Donald Trump is as fitting a final boss as it could be possible to imagine.

For Trump, this third and final debate in Las Vegas was do-or-die. His challenge was near-insurmountable for even a person with a first-class intellect, which Trump does not appear to possess, to face. First, he needed to speak in such a way as to defend his indefensible outbursts about women, not to mention the increasing number of allegations of actual sexual assault, claims backstopped by his own on-tape boasting of theoretical sexual assault released last month.

This, he failed to do, alleging instead that the growing number of sexual assault allegations against him are being fabricated and orchestrated by Clinton's campaign, which he called “sleazy”, at one point to actual laughs from the debate audience.

But he also needed to reach out to moderates, voters outside his base, voters who are not electrified by dog-whistle racism and lumbering misogyny. He tried to do this, using the Wikileaks dump of emails between Democratic party operators as a weapon. But that weapon is fatally limited, because ultimately not much is in the Wikileaks email dumps, really, except some slightly bitchy snark of the kind anyone on earth's emails would have and one hell of a recipe for risotto.

In the debate, moderator Chris Wallace admirably held the candidates to a largely more substantive, policy-driven debate than the two previous offerings – a fact made all the more notable considering that he was the only moderator of the three debates to come from Fox News – and predictably Trump floundered in the area of policy, choosing instead to fall back on old favourites like his lean-into-the-mic trick, which he used at one point to mutter “nasty woman” at Clinton like she'd just cut him off in traffic.

Trump was more subdued than the bombastic lummox to which the American media-consuming public have become accustomed, as if his new campaign manager Kellyanne Conway had dropped a couple of Xanax into his glass of water before he went on stage. He even successfully managed to grasp at some actual Republican talking-points – abortion, most notably – like a puppy who has been semi-successfully trained not to make a mess on the carpet.

He also hit his own favourite campaign notes, especially his opposition to the North American Free Trade Agreement (NAFTA) - but ultimately his intrinsic Donald Trumpiness couldn't stop itself from blazing through.

Remember the Republican primary debate when Trump refused to say that he would accept the party's nominee if it wasn't him? Well, he did it again: except this time, the pledge he refused to take wasn't an internal party matter; it was two centuries of American democratic tradition chucked out of the window like a spent cigarette. A pledge to potentially ignore the result of an election, given teeth by weeks of paranoiac ramblings about voter fraud and rigged election systems, setting America up for civil unrest and catastrophe, driving wedges into the cracks of a national discourse already strained with unprecedented polarisation and spite.

Let it, for what is hopefully just one final time, sink in.

Nicky Woolf is a writer for the Guardian based in the US. He tweets @NickyWoolf.