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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The failed French presidential candidates who refuse to endorse Emmanuel Macron

While the candidates of the main left and right parties have endorsed the centrist from nowhere, others have held back. 

And breathe.

At 8pm on Sunday night France, Europe, and much of the West let out a huge sigh of relief. After over a month of uncertainty, scandals, rebounds, debates and late surges, the results of the first round of the French Presidential Election was as predicted: Emmanuel Macron (24 per cent) will face off against Marine Le Pen (21 per cent) in the second round of the election on the 7 May.

While polls have been predicting this face-off for a while, the shocks of Brexit and the election of Donald Trump had thrown polling predictions into doubt. But France has a good track record when it comes to polling, and their surveys are considered some of the most reliable in the world. The irony is that this uncertainty has meant that the polls have never been so central to a campaign, and the role of polling in democracies has been a hot topic of debate during the election.

The biggest surprise in many ways was that there were no surprises. If there was a surprise, it was a good one: participation was higher than expected: close to 80 per cent – on par with the Presidential Elections of 2012 – whereas there were concerns it would be as low as 70 per cent. Higher participation is normally a bad sign for the extremes, who have highly motivated voters but a limited base, and who often do better in elections when participation is low. Instead, it boosts the traditional parties, but here instead of the traditional right-wing Republican (Fillon is at 20 per cent) or Socialist parties (Hamon at 6 per cent), it was in fact the centre, with Emmanuel Macron, who benefited.

So France has so far not succumbed to the populist wave that has been engulfing the West. The contagion seemed to be spreading when the Italian Prime Minister Matteo Renzi lost a referendum on reforming the constitution, but the fightback started in Austria which rejected the far-right candidate Norbert Hofer in its Presidential election and voted for the pro-European, former-Green independent candidate Alexander Van der Bellen. Those hopes now rest on the shoulders of Macron. After having dubbed Angela Merkel the leader of the free world during his farewell tour of Europe, Barack Obama gave his personal blessing to Macron last week.

Many wondered what impact Thursday night’s shooting on the Champs-Elysées would have. Would it be a boon for Marine Le Pen’s anti-immigration platform? Or even right-wing François Fillon’s more traditional law and order approach? In the end the effect seems to have been minimal.

In the second round, Macron is currently predicted to beat Marine Le Pen by more than 60 per cent of the vote. But how does Le Pen almost double her vote in the second round, from around 20 per cent to close to 40 per cent? The "Republican Front" that saw her father off back in 2002, when he received only 18 per cent of the vote, has so far held at the level of the two traditional political parties. Both Hamon and Fillon have called to vote for Macron in the second round to stop the Front National - Hamon put it nicely when he said he could tell the difference between political opponents, and opponents of the Republic.

But not everyone is toing the line. Sens Commun, the anti-gay marriage group that has supported Fillon through thick and thin, said that it will not call to vote for either party – a thinly veiled invitation to vote for Le Pen. And Nicolas Dupont-Aignan, a conservative, Catholic and anti-EU right wing candidate, whose 5 per cent is the reason Fillon didn’t make it to the second round, has also abstained from calling to vote for either. It is within this electorate that Le Pen will look to increase her vote.

The other candidate who didn’t call to vote for anyone was Jean-Luc Mélenchon, who fell back on a demagogic position of saying he would follow the wishes of his supporters after having consulted them. But as a spokesperson for the FN pointed out, there are remarkable congruities between their respective platforms, which can be categorised as a populism of the left and a populism of the right.

They in particular converge over the question of Europe. Aping Brexit, both want to go to Brussels to argue for reform, and if none is forthcoming put membership of the Eurozone to the electorate. While Le Pen’s anti-Europeanism is patent, Mélenchon’s position is both disingenuous and dangerous. His Plan A, as he puts it, is to attempt reform at the European level. But he knows fine well that his demands, which include revoking the independence of the European Central Bank and putting an end to austerity (the ECB, through its massive programme of quantitative easing, has already been trying to stimulate growth) will not be met. So he reverts to his Plan B, which is to leave the European Treatises and refound Europe on a new basis with like-minded members.

Who those members might be he hasn’t specified, nor has he explained how he would leave the EU - at least Le Pen had the decency to say she would put it to a referendum. Leaving the European Treatise has been in his programme from the beginning, and seems to be the real object of his desires. Nonetheless, having set himself up as the anti-Le Pen candidate, most of his supporters will vote for Macron. Others will abstain, and abstention will only help Le Pen. We’ve been here before, and the last thing we need now is complacency.

 

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