SCOTUS Watch: Orders and Execution

The Supreme Court will have its first summer order list next week. This week was fairly busy with multiple orders, including a rare granting of a stay in a death penalty case. No Alito flag news. 

The ongoing political news -- in some quarters focused on trying to get Biden to step down -- has significant relevance. Who wins in November will have a major influence on how SCOTUS and SCOTUS-related activities will play out.  

New York Trump Trial

The Supreme Court dropped a miscellaneous order on Friday regarding a silly interstate dispute:

Upon consideration of Missouri’s motion for expedited consideration, it is hereby ordered that New York is allowed until July 24, 2024, to file a response to the motion for leave to file a bill of complaint and the motion for a preliminary injunction or stay. 

New York opposed the request for expedited consideration, partly explaining that Trump won't be sentenced to September. The dispute involves the remaining gag order in effect arising from the trial now covering individual prosecutors, court staff, and their families (from the state's brief):

Missouri seeks modest relief: a stay of New York’s gag order and impending sentence against Donald J. Trump during the 2024 Presidential election season so Missourians can participate in the election free from New York’s exercise of coercive power limiting the ability of Trump to campaign.

The validity of using the Supreme Court's original jurisdiction for such a dubious request to interfere with New York judicial proceedings is dubious. 

OTOH, the Trump immunity ruling (which now is alleged to cover the New York case given some of the evidence covered his term) shows how far the Supreme Court has reached out to help Trump.  

Confederate Monuments 

Behind bare orders, including a no comment refusal to stay a pending case, there are cases important to the litigants.

Three people protested a Confederate monument. They were prosecuted for obstructing a major passageway. They were sentenced to a week in jail. The time to serve is now.

The stay request notes that a challenge would take longer than their jail sentence. They claim the First Amendment was violated. The justices were not convinced a stay was warranted based on the law in place. No reason was provided to say why. 

[The litigants could theoretically obtain damages for false imprisonment if they win their appeal.]

Yes, Master 

A long-lasting interstate dispute now has a new "special master" to oversee things.  

Ruben Gutierrez 

Gutierrez was sentenced to death by Texas for his part in a brutal robbery/murder of an elderly lady. 

He has repeatedly tried to get DNA testing, claiming he did not take part in the actual murder. He claims he was outside and not aware the others would kill her. It is far from clear that even granting the request would help him in the end. 

The Supreme Court previously granted evidence hearing (one hour before his execution in 2020) regarding his claim Texas should allow a chaplain in the execution chamber. A separate case protected even the laying of the hands. 

His final SCOTUS appeal relates to the DNA claim. Nonetheless, both executions this week arise from events over 25 years ago. Breyer's concern for executions after an extended period on death row holds true. 

The Supreme Court held up deciding the case (dropping the order referenced above earlier) into the evening. It is bad policy to make each execution day a "waiting for SCOTUS" affair. SCOTUS should decide this before then. 

They granted a stay. The issue very well might be procedural -- the right to bring the claim -- and not the merits. SCOTUS in an earlier case protected the right to a similar challenge. If they take the case, it can be limited to the procedural issue, and he still might ultimately lose the case on the merits.  

So, more waiting. 

Keith Edmund Gavin 

Gavin shot and killed a man, getting an attempted murder add-on for shooting at a law enforcement office. He had already served a 17-year stint for murder. 

His lawyers (technically "he," but Gavin isn't making these arguments) argued that he had inefficient counsel and the jury did not hear enough mitigation testimony. Gavin also seems to have been a model prisoner. Not so model outside.

[The Supreme Court in 2023 denied his appeal.] 

Alabama, which has botched multiple executions in the last few years, agreed to his request for them not to perform an autopsy. Gavin's religious beliefs oppose it though with the state's record, there might be a penal purpose in having one. 

The previous murder conviction and shooting at the law enforcement officer make this a harder case for someone against the death penalty. 

Still, the original vote to sentence him to die was 10-2 (non-unanimous juries for that function allowed at that time). He was in prison for around 25 years. 

The coverage does not suggest he was a dangerous prisoner. Execution was not fundamentally necessary.  Alabama, especially, has at this point run out of strikes regarding screwing up executions. 

Gavin himself (pro se) submitted a handwritten request for a stay of execution. The state argues he has money in an account to pay a filing fee. 

He claims indigency.  The lack of fee blocks a late claim alleging the state does not have jurisdiction to sentence him to death. The state replies that even if the fee matter is waived, that argument fails on the merits. It does look like a last minute Hail Mary.

I don't know why this last minute appeal was filed pro se. The coverage references him still having lawyers. And, though it might be somewhat petty, it does look like he had enough money to pay the fee. If the state waived it here, it would be a precedent for other frivolous appeals. And, yes, this amounts to one.  

SCOTUS disposed of it without comment and then he was executed. The next execution is due next month. 

(The request was worthy of rejection but even here there should be an explanation since someone's life is at stake. That remains my basic sentiment.) 

Court Reform 

President Biden let it be known that he will support court reform. He has already said he supports a national law to protect abortion rights. Other things can also respond to wrong-minded SCOTUS rulings.

I will await the details but this is a sound move. People criticized him for not promoting this issue beforehand. He's an institutionalist at heart. He wasn't going to do so until he was pressed. Where was everyone else?  

Also On The Website 

On the trivia front, I'm not sure if they are done posting stuff, but the online material in opinions so far has been limited this term.