Supreme Court GVRs Chaplain-In-Execution-Chamber Case

Yesterday, the U.S. Supreme Court, in a dispute over execution procedures, granted review, vacated the judgment below and remanded the case in Gutierrez v. Saenz (Docket No. 19-8695, GVR 1/25/2021). (Order List.) The case challenges Texas' exclusion of chaplains from the execution chamber.  In June, 2020, a day before appellant's scheduled execution, the Supreme Court granted a stay of execution pending its decision on whether to grant review. (See prior posting.) As part of that order, the Supreme Court instructed the district court to  promptly determine whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution. Apparently the Texas federal district court made additional findings of fact in Nov. 2020. Yesterday, the U.S. Supreme Court granted certiorari and vacated the 5th Circuit's earlier rejection of the trial court's stay of execution. Yesterday's Supreme Court Order went on to provide:

The case is remanded to the Court of Appeals with instructions to remand the case to the District Court for further and prompt consideration of the merits of petitioner’s underlying claims regarding the presence of a spiritual advisor in the execution chamber in light of the District Court’s November 24, 2020 findings of fact. Although this Court’s stay of execution shall terminate upon the sending down of the judgment of this Court, the disposition of the petition for a writ of certiorari is without prejudice to a renewed application regarding a stay of execution should petitioner’s execution be rescheduled before resolution of his claims regarding the presence of a spiritual advisor in the execution chamber.

Austin American-Statesman reports on the decision.

Execution Delay Sought Because of Health of Chaplain

USA Today reports on anew twist in litigation seeking to delay execution of an inmate.  A suit was filed in federal district court in Indiana seeking a stay:

The lawsuit, filed on behalf of a Buddhist priest who has ministered to condemned inmate Wesley Purkey, argues that the pandemic would risk the health of Rev. Seigen Hartkemeyer who is "religiously obligated" to attend Purkey's July 15 execution....

Purkey's lawyers asserted that Rev. Hartkemeyer, 68, has lung-related illnesses that "make him particularly vulnerable to COVID-19."

The lawsuit claims that the timing of the execution, "forcing Rev. Hartkemeyer to risk his health and life to perform his religious duties as Purkey’s priest," violates the Religious Freedom Restoration Act. 

Supreme Court Stays Execution Of Prisoner Denied A Chaplain In the Execution Chamber

The U.S. Supreme Court today granted a stay of execution pending its decision on whether to grant review in Gutierrez v. Saenz. Ruben Gutierrez's execution was scheduled for today.  In the case the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber. (See prior posting.)  The Supreme Court, while now granting a stay until it either denies certiorari or it grants review and decides the case (full text of Order), added as part of its order:

The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.

USA Today reports on the Court's decision.

5th Circuit Upholds Texas Prison Chaplain Execution Protocol

In Gutierrez v. Saenz, (5th Cir., June 12, 2020), the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber.  The court said in part:

Gutierrez fails to make a strong showing of a likelihood of success in establishing that TDCJ’s execution policy is not “reasonably related to legitimate penological interests.” ...

Perhaps Gutierrez is being denied the final measure of spiritual comfort that might be available. As important as that is, government action does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from enjoying some benefit that is not otherwise generally available.

5th Circuit Upholds Stay of Execution For Buddhist Inmate

In Murphy v. Collier, (5th Cir., Nov. 12, 2019), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, upheld a stay of execution granted last week by a Texas federal district court in the case of a Buddhist inmate who challenges the access he will have to his religious adviser prior to his execution. The district court granted a stay to allow it time to explore factual concerns about the balance between the inmate's religious rights and the prison’s valid concerns for security. (See prior posting.) Christian and Muslim inmates have access to chaplains until the moment they enter the execution chamber.  Members of other religions have access to their outside clergy only until 5:00 p.m.on the day of execution. In his majority opinion for the 5th Circuit, Judge Dennis wrote in part:

We conclude that the district court did not abuse its discretion in granting Murphy’s stay. We agree with the district court’s implicit finding that Murphy has a strong likelihood of success on the merits of his claim that the TDCJ policy violates his rights by allowing inmates who share the same faith as TDCJ-employed clergy greater access to a spiritual advisor in the death house.

Judge Elrod dissented, saying in part:

Because I believe Murphy did not demonstrate that he is likely to succeed on his brand-new, untimely, and unexhausted claim regarding the TDCJ’s pre-execution holding-area protocol, I would hold that the district court abused its discretion in granting Murphy’s motion for stay of execution.

CNN reports on the decision.

New Stay of Execution For Buddhist Inmate Over Access To Chaplain

In Murphy v. Collier, (SD TX, Nov. 7, 2019), a Texas federal district court stayed the execution of Patrick Murphy because of differential treatment of the religious needs of prisoners being executed. The U.S. Supreme Court stayed a previous execution date because of Texas' policy to allow a Christian chaplain to be in the execution chamber, but Murphy's Buddhist spiritual adviser could only be in an adjacent room. (See prior posting.) Texas then modified its procedures and allowed no chaplains in the execution chamber. (See prior posting.) However Murphy claims that there is still differential treatment:

Murphy’s amended complaint, however, has moved its primary focus to the interaction an inmate has with his spiritual advisor before entering the execution chamber..... [A]ll inmates have access to their spiritual advisor during business hours in the two-and-a-half days leading up to the execution. An inmate, however, may only meet with non-TDCJ spiritual advisors in the holding area (generally referred to as the “death house”) between 3:00 and 4:00 p.m. on the day of execution. For the next two hours, preparations are made for the execution. The inmate may make phone calls, including to his spiritual advisor, until 5:00 p.m. Only TDCJ personnel may interact with the inmate thereafter.

The policy, however, does not place any limitation on visits by TDCJ-employed clergy, “who appear to have access to an inmate until the minute he enters the execution chamber.”... Murphy argues that the amended policy still favors some religions over others because TDCJ-employed chaplains, who are all Christian or Muslim, have greater access to the condemned than non-TDCJ employee spiritual advisors.

The court concluded:

The concerns raised by the amended complaint’s focus on the pre-execution procedure are as compelling as those in the original complaint..... A stay will allow the Court time to explore and resolve serious factual concerns about the balance between Murphy’s religious rights and the prison’s valid concerns for security.

Texas Tribune reports on the decision.

Trial Judge's Alleged Anti-Jewish Bias Leads To Stay of Execution

In Ex parte Halprin, (TX Ct. Crim. App., Oct. 4, 2019), the Texas' Court of Criminal Appeals stayed the execution of a Jewish inmate who claims that his trial judge was biased against him. Petitioner claims that the judge regularly used racist language and antisemitic slurs. Plaintiff's Application for a Writ of Habeas Corpus contends:

The ... claim presents newly uncovered evidence that trial judge Vickers Cunningham referred to Mr. Halprin as a “goddamn kike” and “fuckin’ Jew,” and to his Latino co-defendants as “wetbacks,” when the judge bragged about his role in convicting and sentencing to death the Jewish and Latino members of the Texas 7. The evidence of Judge Cunningham’s bias comes primarily from first-hand accounts of disinterested witnesses to his prejudiced statements... and Judge Cunningham’s lifelong association with racist and anti-Semitic role models....

The court remanded the case for determination if petitioner's due process and free exercise rights were violated. Courthouse News Service reports on the decision.

Death-Qualifying Jurors Does Not Infringe Their Free Exercise Rights

In Jackson v. State of Alabama, (AL Ct. Crim. App., Sept. 20, 2019), an Alabama state appeals court in a 135-page opinion dealing with numerous challenges upheld appellant's death sentence.  In one portion of the opinion (pp. 34-40), the court, relying extensively on precedent from other federal district courts, concluded that death-qualifying prospective jurors does not violate the jurors' free exercise of religion.

Alito Weighs In Late On Buddhist Inmate's Request For His Spiritual Adviser At His Execution

As previously reported, late on March 28, the U.S. Supreme Court In Murphy v. Collier ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution was carried out. At that time it was indicated that Justices Thomas and Gorsuch voted against granting the stay. This week, on May 13, Justice Alito filed an opinion (full text) dissenting from the grant of the stay. Justices Thomas and Gorsuch joined the opinion.

In the present case, Murphy cannot overcome the presumption against last-minute applications. As I will explain, see Part III, infra, his religious liberty claims are dependent on the resolution of fact-intensive questions that simply cannot be decided without adequate proceedings and findings at the trial level. Those questions cannot be properly resolved in a matter of hours on a woefully deficient record. But that is precisely what Murphy asked of the lower courts and this Court.

Justice Alito did not explain why he was not listed originally as dissenting from the grant of the stay of execution. He merely said in this week's opinion:

I did not agree with the decision of the Court when it was made. Because inexcusably late stay applications present a recurring and important problem and because religious liberty claims like Murphy’s may come before the Court in future cases, I write now to explain why, in my judgment, the Court’s decision in this case was seriously wrong. 

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, responded to Justice Alito, saying in part:

Put simply, this Court’s stay facilitated the prompt resolution of a significant religious equality problem with the State’s execution protocol and should alleviate any future litigation delays or disruptions that otherwise might have occurred as a result of the State’s prior discriminatory policy.

Death Qualification of Jurors Does Not Violate RFRA

In United States v. Ofomata, (ED LA, Feb. 11, 2019), a Louisiana federal district court rejected a number of challenges to the federal death penalty, including the argument that the death-qualification process violates the Religious Freedom Restoration Act and the First Amendment by necessarily excluding jurors based on their religion. The court said in part:

Even assuming that Ofomata was able to show that the death-qualification process constitutes a substantial burden, his RFRA claim fails because “[t]he question [of] whether a juror is able to follow the law and apply the facts in an impartial way . . . is a compelling government interest.”

Supreme Court Vacates Execution Stay of Muslim Inmate Who Wanted Imam At His Side

By a 5-4 vote, the U.S. Supreme Court yesterday vacated the the stay of execution that had been granted the day before by the U.S. 11th Circuit Court of Appeals to a Muslim inmate who wanted to have his Imam present in the execution chamber when he was executed by lethal injection. (See prior posting.) In Dunn v. Ray, (US Sup. Ct., Feb. 7, 2019), the majority said it was granting the state's application because the inmate had waited until ten days before his Feb. 7 execution date to seek relief.  Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor dissented, saying in part:

Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.

Pro Publica has a lengthy report on Domineque Ray and his murder trial.

Muslim Inmate Seeks Right To Have Imam In Execution Chamber With Him

AP reports that a Muslim inmate on death row in Alabama has filed suit challenging the practice of only allowing a correctional officer and the Christian prison chaplain to be inside the death chamber where lethal executions are carried out.  Dominique Ray is scheduled to be executed Feb. 7. He is seeking a stay while he litigates his right to have a Muslim imam stand in the execution chamber with him. Current practice only allows him to consult with his own spiritual adviser before the execution, with that adviser witnessing the execution from an adjoining room.  Ray argues that the required presence of the prison chaplain in the execution chamber only serves the impermissible purpose of safeguarding the soul of the condemned inmate in accord with the Christian belief system.

Arkansas Commission Refuses To Dismiss Complaint Against Anti-Death Penalty Judge

In an Aug. 20 Order (full text begins at pg. 5) the Arkansas Judicial Discipline and Disability Commission refused to dismiss Allegations (full text) filed in June against Circuit Court Judge Wendell Griffen complaining about his granting of a temporary restraining order barring use for executions of vecuronium bromide sold to the state. (Background).  Griffen is charged with violating the Judicial Canon requiring impartiality through his participation in religious anti-death penalty rallies and vigils. Magnolia Banner News reports on the Commission's order.

Catholic Politicians and the New Church Stance On The Death Penalty

As previously reported, last week the Vatican's Congregation for the Doctrine of the Faith made a change to the Catechism of the Catholic Church so that it now rejects capital punishment in all cases. An AP report now looks at the impact this change may have on politicians in the United States who are Catholic, saying in part:

Pope Francis' decree that the death penalty is "inadmissible" in all cases could pose a dilemma for Roman Catholic politicians and judges in the United States who are faced with whether to strictly follow the tenets of their faith or the rule of law.

Some Catholic leaders in death penalty states have said they'll continue to support capital punishment. But experts say Francis' change could shift political debates, loom over Supreme Court confirmation hearings, and make it difficult for devout Catholic judges to uphold the law as written.

The question of whether or not Catholic political and judicial leaders would be sinning if they continue to support the death penalty is up for interpretation.

"It's going to be a matter of conscience," said the Rev. Peter Clark, director of the Institute of Clinical Bioethics at St. Joseph's University in Philadelphia. "Judges may have to recuse themselves from many cases, if they truly think it's in conflict with their conscience."

Catholic Church Catechism Changed To Reject Capital Punishment In All Cases

Vatican News reported yesterday that the Vatican's Congregation for the Doctrine of the Faith has made a change to the Catechism of the Catholic Church so that it now rejects capital punishment in all cases. Previously the Catechism allowed for capital punishment in "very rare" circumstances.  The new language, approved by Pope Francis, says:

Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes.  In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state.  Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”, and she works with determination for its abolition worldwide”.

8th Circuit Orders Dismissal of Trial Judge's Suit Over His Sitting On Death Penalty Cases

In In re Kemp, (8th Cir., July 2, 2018), the U.S. 8th Circuit Court of Appeals by a 2-1 vote issued a writ of mandamus essentially ordering an Arkansas federal district court to dismiss a suit against seven justices of the Arkansas Supreme Court brought by Wendell Griffen, a state trial court judge. The Arkansas Supreme Court had ordered Griffen, who is also a Baptist minister, taken off of all cases involving the death penalty or the state's execution protocol, citing an apparent lack of impartiality. Griffen had issued a temporary restraining order against the state's method of execution after he wrote a blog post criticizing the death penalty as immoral and took part in an anti-death penalty rally on Good Friday.  Griffen then sued in federal district court claiming infringement of his religious freedom as well as retaliation for exercising his free speech rights, and violation of his due process and equal protection rights. The district court refused to completely dismiss Griffen's lawsuit. (See prior posting.) The 8th Circuit held, however, that Griffen had not stated a plausible claim for relief under any of his theories.  Judge Kelly dissented, arguing that this is an improper use of mandamus.  Arkansas Democrat-Gazette reports on the decision.

Judge's Suit Challenging His Removal From Death Penalty Cases Moves Ahead

In Griffen v. Arkansas Supreme Court, (ED AR, April 12, 2018), an Arkansas federal district court held that sovereign and judicial immunity do not bar a suit for declaratory relief brought by a state court judge against justices of the Arkansas Supreme Court after they barred him from hearing death penalty cases.  Plaintiff, who is also a pastor, was active in demonstrations and vigils opposing the death penalty.  He contends that the action taken against him amounts to retaliation based on his speech and religion in violation of the 1st Amendment and the Arkansas Religious Freedom Restoration Act. The court held that he had stated a plausible claim for relief.  AP reports on the decision.

UPDATE: On April 24, defendants filed a writ of mandamus with the 8th Circuit challenging the district court's refusal to dismiss the lawsuit. (Arkansas Online).

Appeals Court Says Mennonite Woman Must Remain In Jail Until She Will Answer Prosecution's Questions

A Colorado appeals court. after expedited consideration, has rejected religious liberty arguments raised by a Mennonite woman who refuses to testify on behalf of the prosecution in a capital case.  Greta Lindekranz was an investigator for defense attorneys. The prosecution wants her testimony to rebut arguments that convicted murderer Robert Ray received ineffective assistance of counsel.  Lindekranz, who opposes capital punishment on religious grounds, argues that answering questions on direct examination by the prosecution would make her a tool in the prosecution's efforts to execute Ray.  The trial court held that her refusal to answer questions put forward by the prosecution placed her in contempt, and it ordered her held in jail until she elects to answer the questions. (See prior posting.)  In People v. Ray and Concerning Lindekranz, (CO App., March 8, 2018), the appellate court refused to reverse the contempt citation.  It held that even if strict scrutiny applies, the state has a compelling interest in ascertaining the truth and rendering a just judgment in accordance with the law.  The court rejected Lindekranz's alternative of answering questions from the court, with the prosecution and defense then cross-examining her.

The court concluded:

Ms. Lindecrantz is in a tough spot — caught between the proverbial rock and a hard place. We take no pleasure in declining to extricate her. But the state of the law being what it is, decline we must.

Colorado Public Radio, reporting on the decision, says that an appeal will be filed with the Colorado Supreme Court.

UPDATE: AP reports (March 10) that Lindekranz will now testify because her refusal to do so is hurting Ray's appeal. According to her lawyer: "Based on this dramatic change in circumstance, she has concluded that her religious principles honoring human life now compel that she must testify."

Federal Court In Habeas Action Finds California Prosecutor's Use of Biblical References Prejudicial

In Roybal v. Davis, (SD CA, Dec. 2, 2015), a California federal district court granted penalty phase habeas corpus relief in a petition brought by a defendant who had been sentenced to death by a California state jury in the robbery and stabbing murder of a 65-year old woman.  The district court found that the California Supreme Court was "objectively unreasonable" in concluding that improper argument by the prosecutor during the penalty phase of the murder trial was harmless error and not prejudicial to the defendant. (People v. Roybal,  (1998)). At issue were Biblical references made by the prosecutor.  The district court, in a very lengthy opinion dealing with numerous other objections as well, said in part:

It is without question that the prosecutor improperly urged the jurors to impose a death sentence on Petitioner based on biblical law.... [T]he prosecutor did not stop with simply drawing parallels between state law and biblical law which, in itself, would have been misconduct. He went on to quote directly from the Bible, asserting that biblical text demanded a specific punishment for murder.... Such argument could only have been meant to urge the jurors to find justification for a death sentence in biblical text, authority well outside the penal code, and to subvert or frustrate their consideration of the proper sentencing factors under state law....

Here, the prosecutor's unambiguous, repeated, and carefully timed improper exhortations to the jury to apply biblical law diminished the jurors' sense of personal decision-making for the imposition of the death penalty. In so many words, the jury was informed that the Bible requires a murderer who kills with iron (i.e. knife) to himself be put to death. The prosecutor's improper argument presented an intolerable danger that the jury minimized its role as factfinder and encouraged jurors to vote for death because it was God's will, and not that the imposition of the death penalty complied with California and federal law.....

As discussed above, the California Supreme Court correctly found that the prosecutor's religious argument was misconduct and fell outside the bounds of both state and federal law, but unreasonably found that the comments were not prejudicial.

San Diego Union Tribune reports on the decision.

National Evangelical Group Takes More Flexible Stance On Capital Punishment

The National Association of Evangelicals this week released a new Resolution on Capital Punishment (full text) adopted at its semi-annual meeting.  The Resolution recognizes that instead of the previous widespread support for capital punishment, now Evangelical Christians differ in their beliefs as to whether capital punishment should be a part of American law.  The Resolution offers arguments both for and against the death penalty, saying in part:

As evangelicals, we believe that moral revulsion or distaste for the death penalty is not a sufficient reason to oppose it. But leaders from various parts of the evangelical family have made a biblical and theological case either against the death penalty or against its continued use in a society where biblical standards of justice are difficult to reach. In Mosaic Law, standards of evidence were stringent, requiring a minimum of two eyewitnesses who were willing to stake their own lives on the truthfulness of their testimony and who would initiate the execution by “casting the first stone.” Circumstantial evidence was not permitted. The contemporary American system is unlikely to reach such standards of evidence, and given the utter seriousness of capital crimes, the alarming frequency of post-conviction exonerations leads to calls for radical reform....

Other evangelicals continue to support the death penalty in limited circumstances as a legitimate exercise of the state’s responsibility to administer justice, and as a deterrent to crime. They point to heinous crimes, such as mass murder, terrorism, and the abduction, rape and murder of a young child, in which the perpetrator is caught on camera or is seen by multiple witnesses, where the evidence is overwhelming and there are no issues of mental incompetency. In such cases, some evangelicals argue for swift prosecution, with necessary safeguards, and if appropriate application of the death penalty as the best way to render justice, deter future crimes and allow the victim’s family and community to heal.