Cert Petitions Granted with Decision Pending

The Supreme Court has granted certiorari in the following cases involving issues of interest to capital habeas litigators:

Flowers v. Mississippi, 17-9572 (cert. petition granted November 2, 2018)
(case below: 240 So.3d 1082 (Miss.)

Question presented in the petition:

     Petitioner Curtis Flowers has been tried six times for the same offense in Mississippi state court. Through the first four trials, prosecutor Doug Evans relentlessly removed as many qualified African American jurors as he could. He struck all ten African Americans who came up for consideration during the first two trials, and he used all twenty-six of his allotted strikes against African Americans at the third and fourth trials. (The fifth jury hung on guilt-or-innocence and strike information is not in the available record). Along the way, Evans was twice adjudicated to have violated Batson v. Kentucky – once by the trial judge during the second trial, and once by the Mississippi Supreme Court after the third trial.

     At the sixth trial Evans accepted the first qualified African American, then struck the remaining five. When Flowers challenged those strikes on direct appeal, a divided Mississippi Supreme Court reviewed Evans’ proffered explanations for the strikes deferentially and without taking into account his extensive record of discrimination in this case, and affirmed. Flowers then sought review here, asking: “Whether a prosecutor’s history of adjudicated purposeful race discrimination must be considered when assessing the credibility of his proffered explanations for peremptory strikes against minority prospective jurors?” This Court responded by granting certiorari, vacating the Mississippi Supreme Court’s judgment, and remanding “for further consideration in light of Foster v. Chatman, 136 S. Ct. 1737 (2016).” Flowers v. Mississippi, 136 S. Ct. 2157 (2016).

     On remand, a divided Mississippi Supreme Court again affirmed. Over three dissents, the state court majority emphasized deference to the trial court, and insisted both that the “[t]he prior adjudications of the violation of Batson do not undermine Evans’ race neutral reasons,” and that “the historical evidence of past discrimination ... does not alter our analysis ....” Flowers v. Mississippi, 240 So.3d 1082, 1124 (Miss. 2018). The state court majority then repeated, nearly word-for-word, its previous, history-blind evaluation of Evans’ strikes.

     Because a prosecutor’s personal history of verified, adjudicated discrimination is highly probative of both his propensity to discriminate and his willingness to mask that discrimination with false explanations at Batson’s third step, the barely altered question presented is:

Whether a prosecutor’s history of adjudicated purposeful race discrimination may be dismissed as irrelevant when assessing the credibility of his proffered explanations for peremptory strikes against minority prospective jurors?

Question presented on grant of cert:

Whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 U.S. 79 (1986) in this case.

Click here to view Flowers's certiorari petition.

Gamble v. United States, 17-646 (cert. petition granted June 28, 2018)
(case below: 11th Cir. (unpublished))

Question presented:

Whether the Supreme Court should overrule the "separate sovereigns" exception to the double jeopardy clause.

Click here to view Gable's merits brief. Click here to view the amicus brief of Howard University School of Law Thurgood Marshall Civil Rights Center in support of neither party. Click here to view the amicus brief of Law Professors in support of petitioner. Click here to view the amicus brief of U.S. Navy-Marine Corps Appellate Defense Division, et al. in support of petitioner. Click here to view the Constitutional Accountability Center, et al. in support of petitioner. Click here to view the amicus brief of Criminal Defense Experts in support of petitioner.  Click here to view the amicus brief of National Association of Criminal Defense Lawyers, et al. in support of petitioner.  Click here to view the amicus brief of Criminal Procedure Professors in support of petitioner.   Click here to view the amicus brief of Senator Orrin Hatch in support of petitioner.  Click here to view the amicus brief of the Rutherford Institute in support of petitioner.  Click here to view the merits brief of the United States. Click here to view the amicus brief of Texas, et al. in support of respondent.  Click here to view the amicus brief of National Association of Counties, et al. in support of respondent.  Click here to view the amicus brief of National Indigenous Women's Resource Center, et al. in support of respondent.  The case has been set for argument on December 5, 2018.

Carpenter v. Murphy, 17-1107 (cert. petition granted May 21, 2018)
(case below: 866 F.3d 1164 (10th Cir.))

Question presented:

Whether the 1866 territorial boundries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an "Indian reservation" today under 18 U.S.C. § 1151(a).

Click here to view the warden's merits brief.  Click here to view the amicus brief of International Municipal Lawyers Association, et al. in support of the warden.  Click here to view the amicus brief of Oklahoma Independent Petroleum Association in support of the warden.  Click here to view the amicus brief of Oklahoma Sheriffs' Association, et al. in support of the warden.  Click here to view the amicus brief of the States of Nebraska, Kansas, Louisiana, Michigan, Montana, South Dakota, Texas, Utah, Wyoming, and Paul R. LePage, Governor of Maine in support of the warden.  Click here to view the amicus brief of Environmental Federation of Oklahoma, Inc., et al. in support of the warden.  Click here to view the amicus brief of the United States in support of the warden.  Click here to view Murphy's merits brief.  Click here to view the amicus brief of David Boren, et al. in support of Murphy.  Click here to view the amicus brief of National Congress of American Indians in support of Murphy.  Click here to view the amicus brief of Historians, Legal Scholars, and Cherokee Nation in support of Murphy.  Click here to view the amicus brief of Muscogee (Creek) Nation in support of Murphy.  Click here to view the amicus brief of Former United States Attorneys in support of Murphy. Click here to view the amicus brief of National Indigenous Women's Resource Center, et al. in support of Murphy.  Click here to view the warden's reply brief.  Argument will be heard on November 27, 2018.  The joint motion of Murphy and Moscogee (Creek) Nation for leave for Moscogee (Creek) Nation to participate in oral argument as amicus curiae and for divided argument was granted.  The Solicitor General's motion for leave to participate in oral argument as amicus curiae and for divided argument was granted.

Bucklew v. Precythe, 17-8151 (cert. petition granted April 30, 2018)
(case below: 883 F.3d 1087 (8th Cir.))

Questions presented: 

(1) Should a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended? (2) Must evidence comparing a state’s proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate? (3) Does the Eighth Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition? (4)  Whether petitioner met his burden under Glossip v. Gross, 576 U.S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.

The fourth question was added by the Supreme Court. Click here to view Bucklew's merits brief.  Click here to view the amicus brief of the American Civil Liberties Union, et al. in support of Bucklew.  Click here to view the amicus brief of the American Medical Association in support of neither party.  Click here to view the amicus brief of Megan McCracken and Jennifer Moreno in support of Bucklew.  Click here to view the amicus brief of Pharmacy, Medicine, and Health Policy Experts in support of Bucklew.  Click here to view the amicus brief of Association for Accessible Medicine in support of neither party.  Click here to view the amicus brief of Former Judges and Prosecutors in support of Bucklew.  Click here to view the amicus brief of Scholars and Academics of Constitutional Law in support of Bucklew.  Click here to view the amicus brief of Former Corrections Officials in support of Bucklew.  Click here to view the director's merits brief.  Click here to view the amicus brief of the States of Texas, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Nebraska, South Carolina, Tennessee, Utah, and Wyoming in support of the director.  Click here to view the amicus brief of Arizona Voice for Crime Victims, Inc., and Melissa Sanders.  Click here to view Bucklew's reply brief.  Argument was heard on November 6, 2018.

Madison v. Alabama, 17-7505 (cert. petition granted February 26, 2018)

Questions presented: On January 25, 2018, the State seeks for the second time to execute Vernon Madison, a 67-year-old man who has been on Alabama’s death row for over 30 years. Mr. Madison suffers from vascular dementia as a result of multiple serious strokes in the last two years, and no longer has a memory of the commission of the crime for which he is to be executed. His mind and body are failing: he suffers from encephalomacia (dead brain tissue), small vesselischemia, speaks in a dysarthric or slurred manner, is legally blind, can no longer walk independently, and has urinary incontinence as a consequence of damage to his brain.

The first time Mr. Madison was scheduled to be executed by the State of Alabama, in May, 2016, he challenged his competency in the state circuit court pursuant to the Alabama statute governing competency-to-be-executed claims. After the circuit court denied his claim, Alabama law prohibited any appeal in state court, and Mr. Madison challenged his claim in federal court. In granting habeas corpus relief, the Eleventh Circuit majority found that the evidence undisputably established that Mr. Madison had no memory of the offense, and all three judges, including the dissenting judge, agreed that he was incompetent to be executed. (footnote omitted.)

This Court reversed the Eleventh Circuit’s grant of habeas corpus relief and explicitly declined to address the “merits of the underlying question outside of the AEDPA context,” Dunn v. Madison, 138 S. Ct. 9, 12 (2017), as that question was not “[a]ppropriately presented.” Id. (Ginsburg, J., concurring).

With this Court’s opinion in hand, the State sought an expedited execution date, and Mr. Madison’s execution was scheduled for January 25, 2018. Mr.Madison once again petitioned the Mobile County Circuit Court for relief underthe same statutory provision, this time with new evidence that the court-appointed expert, Dr. Karl Kirkland, whose report the circuit court and this Court had previously relied on in denying Mr. Madison’s claim, had been suspended from the practice of psychology after his narcotics addiction led him to forge prescriptions for illegal pills (including one incident occurring just 4 days after Mr. Madison’s 2016 competency hearing) and eventually into drug rehab. Though the State never disclosed these facts to any court – the circuit court, the Alabama Supreme Court (footnote omitted) or this Court – while at the same time arguing for reliance on Dr. Kirkland to deny Mr. Madison’s claim, the circuit court again denied relief after a brief hearing and finding that Mr. Madison was competentto be executed. See Appendix A.

 With no available appeal in the Alabama state courts, Mr. Madison is again before this Court, this time “outside of the AEDPA context,” requesting that his execution be stayed and certiorari be granted to address the following two substantial questions: (1) Consistent with the Eighth Amendment, and this Court’s decisionsin Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See Dunn v. Madison, 138 S. Ct. 9, 12 (Nov. 6, 2017)(Ginsburg, J., with Breyer, J., and Sotomayor, J., concurring).  (2)  Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution?

madison_cert_petition.pdf to view Madison's merits brief.  Click here to view the amicus brief of the American Psychological Association and American Psychiatric Association in support of Madison.  Click here to view Alabama's merits brief.  Click here to view the amicus brief of the States of Texas, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Oklahoma, South Carolina, and Tennessee in support of Alabama.  Click here to view the amicus brief of the National Association of Police Organizations in support of Alabama.  Click here to view Madison's reply brief.  Argument was heard on October 2, 2018.