SCOTUS Watch: More Death Penalty News

ETA: Various grants on Friday filled some empty oral slots.

===

Monday's Order List had a bit of an Easter Egg among its nothing burger material. After an extended look, the reason only open to supposition, the Supreme Court sent a death penalty case back to the Texas Court of Criminal Appeals for another look.  Let's be clear.  That's all it did.  They have not taken the hint (at least the first time) in the past.  

A Slate article discusses the matter in more depth, including how a progressive prosecutor (yes, found even in red states) asked for the case to be sent back (state law required court approval).  The case was infected by a systematic screw-up at the DNA lab.  The trial court agreed but the appellate court said that the evidence still was good enough.  When both the trial court and prosecutor say the opposite, sort of a red flag.  

The Supreme Court's statement in full:

The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Court of  Criminal Appeals of Texas for further consideration in light of the confession of error by Texas in its brief filed on [9/28/22]. 

So, though this has "HINT!" written all over it with a minimal amount of inference, what the order specifically does is require the Texan court to consider it again.  I'm not sure what that brief adds to the equation since (as noted by the article) the court is aware of the prosecutor's stance. 

Is there something in the brief specifically that matters? Maybe, it would help if the Supreme Court said.  I wonder if the more conservative justices only went along without comment because of the carefully worded statement.  Again, the docket page is interesting. They get the record and then the case is repeatedly (four times) "distributed for conference" before this decision.  The "relist" was discussed by Mr. Relist back in November.

===

The order in Mr. Escobar's case was a master of clarity as compared to the multiple denials (both in the order list and in separate orders) involving the execution by Texas of Robert Fratta.  A bunch of "no comments," which I will continue to deem wrong.  If the Supreme Court is going to be the final word on the execution of someone, they (or even one justice) can at least provide a statement on the at times (like here) multiple issues alleged.  

Robert Fratta is not as sympathetic as Amber McLaughlin, the trans inmate that raised various mental health issues and was not found warranting the death penalty by the jury (a split decision led to the judge deciding).  I think his claims (other than perhaps a wider class action concern that the execution drugs were expired) are likely weak.  But, they warrant more of a reply than basically DENIED multiple times.  

Fratta was executed for hiring people to murder his wife.  The murder (the two others involved have not been executed yet apparently) was in the 1990s but a retrial was necessary in 2009.  Still over a decade ago, but not really that long as these things go.  A little "fu" bit is his own children testifying against him and calling him "Bob." Should have kept him in prison.

The coverage of his execution includes some evidence that (as before) the drugs were expired/tainted, including a reference to him saying "it burns."  The person who I first saw reported that last statement is an expert and witness of executions, who discusses lethal injections here.  I also saw a comment of his on Twitter that is dismissive of the hopes of nitrogen gas. 

One article noted: "The 65-year-old was pronounced dead at 7:49 p.m., 24 minutes after the old, but still deadly drugs began coursing through his veins. Farah Fratta’s brother and son attended the execution, according to a prison report. The prisoner did not give a final statement."

===

After years of delays because of screw-ups, Oklahoma is continuing its efforts to clear some people off death row.  One summary of the crime again leads one not to be too sympathetic:

In October 2003, Eizember headed to Depew where he believed his ex-girlfriend, Kathy Biggs, was hiding from him at her mother’s house. He broke into the neighbor’s home to watch for her, but a confrontation ensued and A.J. and Patsy Cantrell were shot and killed.

Eizember then beat his ex-girlfriend’s mother, Carla Wright, and shot and wounded her grandson, 16-year-old Tyler Montgomery, before leaving the scene.

He then was involved in an extended manhunt that had additional unsavory details.  Like Scott Eizember himself noted at one point, he belongs in prison, where he has been for the last twenty years.  This is getting closer to logical execution material all the same.  The murder of your wife (see last case; especially without special cruelty) to me is not quite in the same league as the multiple acts here, down to kidnapping people to try to escape.  

Opposing executions is not just about "sympathy," but for whatever reason, the Oklahoma Pardon and Parole Board voted 3-2 to deny Eizember clemency.  So, two members did support it.  But, you need a majority under state law even to allow the governor to think about it.  A bit strict in my view, but there you go.  

A late controversy arose because the state was going to oppose letting his choice of minister (a familiar counselor of prisoners, if one who got in trouble in the past protesting).  But, I later saw a reference to an agreement that allowed his choice to be there with him all the same.  One thing the current conservative majority does care about is religious liberty in that specific fashion. Small favors, I guess.  

I hope the minister provided some solace while he was executed. 

===

In the midst of these things, another small development -- the Supreme Court, for now, will not intervene in litigation involving a New York gun regulation law.  Alito and Thomas had a short concurrence accepting that it was proper to let the Second Circuit, for now, handle it, though doing so with a little bit of grumbling.  

A little bit of inside baseball (and I guess this is appropriate for this discussion, given the use of guns) is that this was first noted by legal twitter before 10 A.M. on Wednesday.  It took a little while for it to be posted on the website.  

I simply do not remember (it probably happened) such an order dropping so early.  The only thing that usually happens before 10 A.M. are order lists.  They usually wait until later to drop other orders.  Again, I wonder about the timing of these things. Was this supposed to be a message?

===

Next up: A few people are scheduled to be executed next month. The name that stands out is Richard Glossip, involved in one of the cases that got Oklahoma so much in trouble.  Glossip (5-4) lost his case, with strong dissents including Breyer's against the death penalty generally, but has yet to be executed.