Criminal Defense Attorney Nick Alcock takes exception to a recent 9th circuit ruling involving the death penalty. The latest decision from the court directly affects a criminal defense attorneys ability to file motions and defend clients. This criminal case involves a defendant who was executed in Idaho. Before the defendant was in fact executed, his criminal attorneys filed a motion arguing that the type of chemicals to be used in the upcoming execution constitute cruel and unusual punishment. The chemicals purportedly can cause extreme pain prior to unconsciousness.
The Court held that the standard for such stays of execution is significant and difficult to prove. Now, prior to succeeding in any stay or delay of execution, thecriminal defense attorneys must show that they are likely to win the motion. Such a standard is somewhat arbitrary and I personally disagree with it. When the stakes are so high—the killing of a person—one would think that the court would allow criminal attorneys some margin for error. Obviously there are instances where criminal lawyers file motions without knowing all the facts. Asking for a stay is simply asking for a delay, while the facts and law can be fleshed out. This holding is completely contrary to common sense. I believe that if there is one chance in 100 that the criminal attorney is right, then the case should be delayed. Otherwise it is entirely likely that the Court will at some future date execute an innocent person or, in the alternative, execute them in a cruel and unusual way.
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