Jeffrey Landrigan Executed in Contravention of IACHR Recommendations

Jeffrey Timothy Landrigan was executed by lethal injection late last night in Arizona following the U.S. Supreme Court’s order yesterday, allowing the execution to proceed despite the unknown origin of one of the drugs, sodium thiopental, to be used by Arizona. [Arizona Republic]  The unnamed British drug manufacturer had not received approval from U.S. regulatory agency the Food and Drug Administration for its version of the drug, as would generally be required to broadly market it in the United States.  [National Post] In a 5-4 decision in favor of vacating the Arizona District Court’s stay of execution (temporary restraining order), a majority of the U.S. Supreme Court justices held that the plaintiffs were required to provide “evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering’” and had not met their burden.  Mere speculation on the part of the District Court judge that use of a non-FDA approved drug could cause pain and suffering was insufficient.  Justices Ginsburg, Breyer, Sotomayor and Kagan favored denying the application to vacate the stay.  Reprieve founder Clive Stafford Smith wrote yesterday in the Guardian that the British company supplying the sodium thiopental “should be named and shamed”.

The execution was carried out in contravention of the precautionary measures and merits report issued by the Inter-American Commission on Human Rights last week, which requested that the U.S. not execute Landrigan at least until he had been provided an opportunity to present evidence of mitigating factors and another sentencing hearing, in line with the U.S. Supreme Court’s 2002 decision in Ring v. Arizona which established that the state sentencing scheme requiring judges, rather than juries, to find aggravating circumstances and establish the corresponding penalty was unconstitutional.  The IACHR determined that the Supreme Court’s subsequent decision not to apply Ring to cases that had already gone through appeal violated Landrigan’s due process and equal protection rights.  As IACHR President Felipe González pointed out at last week’s press conference announcing the decisions, several States in the Western Hemisphere have federal systems, but are nonetheless responsible for ensuring compliance with the Commission’s decisions at all levels of government.  The United States’ continued argument that it cannot force individual states to comply with the federal government’s international obligations has time and again attracted condemnation from international tribunals, particularly in death penalty cases.  There was no public comment from the U.S. State Department on the Landrigan case, although the Commission itself forwarded its decisions to Arizona authorities. [IACHR]

Former Arizona trial judge, Cheryl Hendrix, who sentenced Landrigan to death in 1990 has since advocated commutation of his sentence in favor of life imprisonment, saying she had no choice but to impose the death penalty in the absence of evidence of mitigating circumstances.  Judge Hendrix said she would have sentenced Landrigan to life had she been presented with such evidence, including Landrigan’s history of mental illness, the brain damage caused by his mother’s alcohol use while pregnant, troubled childhood and a family history of violence. [Boston Herald]  For his part, Landrigan has argued that, had he fully understood the implications, he would have allowed such evidence to be presented.  Amnesty International recently issued an Urgent Action appeal highlighting Judge Hendrix’ comments and the importance of the mitigating circumstances in Landrigan’s case.

Landrigan’s case also involves allegations of innocence, based on DNA evidence showing someone other than Landrigan was at the crime scene, which Landrigan argued excluded him as the actual killer or a major participant in the murder. [Boston Herald]  Those claims were heard by the Arizona Supreme Court and the U.S. Court of Appeals for the Ninth Circuit.  Yesterday, the Ninth Circuit denied Landrigan’s request for a stay of execution, finding that the new DNA test results tending to show that someone else was present at the crime scene did not support the prima facie showing required by the Antiterrorism and Effective Death Penalty Act of 1996 that new facts which could not have been discovered earlier exercising due diligence “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”. 28 U.S.C. § 2244(b)(2)(B)(i) and (ii).

In its May 2007 judgment in Schriro v. Landrigan, a 6-3 majority of the U.S. Supreme Court reversed a Ninth Circuit decision, and held that the District Court had not abused its discretion in refusing to grant Landrigan an evidentiary hearing in his post-conviction federal habeas petition alleging ineffective assistance of counsel for failure to investigate mitigating circumstances.  The Court found that Landrigan had specifically instructed his defense counsel not to present mitigating evidence at sentencing and, therefore, the state court was entitled to conclude that Landrigan would not have allowed any mitigating evidence to be presented, regardless of its nature; accordingly, he would be unable to demonstrate that his counsel’s actions prejudiced the outcome of the sentencing hearing and was therefore not entitled to an evidentiary hearing.

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