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[Kiwithrottlejockey]

from The Washington Post....

After federal appeals court stays Alabama inmate's lethal injection,
evenly split Supreme Court rejects request to step in

By MARK BERMAN | 9:58PM EDT - Thursday, May 12, 2016


Vernon Madison. — Photograph: Alabama Department of Corrections/Associated Press.

HOURS before an Alabama inmate was set to die by lethal injection, a federal appeals court on Thursday agreed to stay the execution to let authorities consider arguments about his competency. And later on Thursday, an evenly divided Supreme Court left the stay in place.

Vernon Madison was found guilty and sentenced to death for killing Julius Schulte, a police officer in Mobile, Alabama, in 1985. According to police, Schulte — a 22-year veteran of the department — was responding to a domestic complaint involving a missing child when he was shot.

Madison's case has stretched on for decades, through multiple convictions and reversals. Alabama officials had planned to execute him by lethal injection at 6 p.m. on Thursday, but a three-judge panel from the U.S. Court of Appeals for the 11th Circuit said in an order on Thursday morning that it would allow him to press his case in court.

Alabama's attorney general filed a motion Thursday with the U.S. Supreme Court seeking to vacate this stay, arguing that the appeals court had committed “an affront to Alabama's judicial branch” and that it would “add insult to that injury by granting a stay of execution”.

In an order shortly after 9:20 p.m., the Supreme Court said it was denying the motion to vacate the stay in an unusual manner. The justices were evenly split, with four members — Chief Justice John G. Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito — all saying they would have granted the application to vacate the stay. (Five justices would have been needed to vacate the stay.)

The court is down to eight justices since the death of Antonin Scalia in February; it seems likely that Scalia would have voted to lift the stay.

Attorneys for Madison had argued in court filings that he is not competent enough to be executed. They say that because of “a series of strokes and other serious medical conditions,” Madison suffers from dementia and has “an inability to rationally understand why the state of Alabama is seeking to execute him.”

Alabama authorities had pushed against a stay and insisted that a state trial court had determined that Madison had a rational understanding that he was facing execution. An earlier filing from the office of Luther Strange, Alabama’s attorney general, said Madison was “seeking to impose a skewed interpretation of the state court order to create an issue for appeal.”

On Thursday afternoon, Strange’s office contended that granting the stay of execution “is an absolute abuse of discretion” and urged the Supreme Court to vacate the stay.

The appeals court said that the filing it considered was the first chance a state or federal court had to consider whether Madison was fit to be executed under the Eighth Amendment. Oral arguments were set for June 23rd in Atlanta.

Madison's attorneys had sought another avenue to avoid the execution, arguing in a filing to the U.S. Supreme Court on Thursday morning that his death sentence may be unconstitutional.

This case has been winding through the court system for three decades. Madison's first conviction was reversed after it was determined that black people were illegally kept off the jury, and his second conviction was reversed after an appeals court determined that prosecutors got expert testimony “based partly on facts not in evidence”. After a third trial in 1994, the jury sentenced him to life without parole, but the judge ultimately imposed a death sentence.

It is this last sentencing that his attorneys focused on for their filing Thursday to the U.S. Supreme Court, arguing that recent action by the justices suggests that his death sentence was unconstitutional.

In January, the U.S. Supreme Court ruled in Hurst vs. Florida that Florida's unique system of imposing death sentences — allowing judges, rather than juries, to make the decision — was unconstitutional, prompting that state to revamp its death penalty.

The Hurst case continues to reverberate in Florida, which has not carried out an execution since the justices ruled and where the state's highest court is weighing action that could overturn death sentences for nearly 400 inmates.

An inmate in Alabama named Christopher E. Brooks argued that Alabama's death-sentencing system is “virtually identical” to the nullified Florida system, but the justices rejected his appeal and he was executed by lethal injection in January. Strange, Alabama's attorney general, said his state's “capital sentencing scheme is wholly different from Florida's” when it came to who could find the aggravating circumstances that warrant a death sentence.

Last week, the Supreme Court said it was reversing its decision from earlier in the year to reject a different Alabama inmate's request to review a lower court's ruling in his case. The justices said they were remanding the case to a criminal appeals court in Alabama “for further consideration in light of Hurst vs. Florida”. The appeals court stayed Madison's execution before the Supreme Court had responded to the filings that mentioned this on Thursday.

• Mark Berman covers national news for The Washington Post and anchors Post Nation, a destination for breaking news and stories from around the country.

https://www.washingtonpost.com/news/post-nation/wp/2016/05/12/federal-appeals-court-delays-alabama-inmates-lethal-injection-hours-before-scheduled-execution