lN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

F|LED

10/08/2018

C|erk of the Appellate Courts

October 3, 2018 Session ABU~ALI ABDUR’RAHMAN ET AL. v. 'I`ONY PARKER ET AL.

Appeal from the Chaneery Court for I)avidson County No. 18~183-!11 Ellen H. Lyle, Chancellor

No. M2018-01t385~SC-RDO~CV

SI»l/\RON G. LEE, J}, dissenting

The Petitioners, who have been sentenced to death, contend that the State’s recently adopted lethal injection protocol violates their federal and state constitutional rights to be free from cruel and unusual punishment On this important issue, the Petitioners are entitled to a l:"air and meaningful opportunity to be heard at trial and on appeal without regard to l) the constitutionality of other lethal injection protocols the State has no plans to use; 2) the execution dates previously set by this Court for Petitioners Billy Ray lricl< (already executed), Edmund Zagorksi, and David Earl l\/liller;l and 3) the length of the Petitioners’ briefs or the extra minutes granted i`or oral argument

The constitutionality ot` the State’s current lethal injection protocol is a complicated issue, involving extensive expert testimony Several i`actors, over Which the Petitioners had little or no control, combined to deprive them of a fundamentally fair process One significant factor is the Court’s unfortunate rush to execute based on the perceived need to end this case before the executions ot` Petitioners lrick, Zagorsl<i, and Miller. With the stroke oi`a pen and in the interest of fairness and justice, the Court could have reset these executions

l Zagorsl<i is set to be executed on ()etober l l, 2018, and l\/liller on December 6, 2018. lrick Was executed on August 9, 2018, after this Court and the United States Supreme Court denied him a stay ot` execution Se<z frick v. 7`€11)2€53@€, 585 U.S, W, ___~ (ZOl 8) (Sotomayor, J., dissenting) (“ln refusing to grant lricl< a stay, the Court today turns a blind eye to a proven likelihood that the State ot`Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its eustody, while shrouding his suffering behind a veneer oi` paralysis l cannot in good conscience join in this ‘rush to execute’ Without first seeking every assurance that our precedent permits such a result No. Ml987~0()l3l~SC-DPE*DD (Lee, J., dissenting), at l. li the law permits this execution to go forward in spite oi` the horrii`ic final minutes that irick may Well experience, then we have stopped being a civilized nation and accepted barbarism.”)i

By putting this case on a rocket dockct, the Court denied the Pctitioners a fair and meaningful opportunity to be heard and jeopardized the public’s confidence and trust in the impartiality and integrity of the judicial system. "lf`oday, the Court meets its sell`»¢ii'npt)scd deadline by deciding this case before Zagorski’s October l l execution and l\/liller’s l`)ecember 6 exectition~btit at great cost. l cannot go along with the Court’s decision because these proceedings have not been iiindan_ientally fair to the Petitioners.

l.

lior many years, the State’s lethal injection protocol has been a moving target, with the l`eiiiiessee l)epartment of Correction frequently changing its lethal injection protocols. On January 8, 2018, the Department adopted a new lethal injection protocol consisting of two options: l) Protocol A, using compounded pentobarbital; 2) Protocol B, using midazolam, vecuronium bromide, and potassium chloride Ten days after the Dcpai;tment announced these protocols, this Court set lrick’s execution date for August 9, 20l8.“

On l""cbruary 20, ZOlS, the Petitioners filed a declaratory judgment action in the trial court, challenging the constitutionality of Protocol B, the new midazolam~based protocol ’l"he Petitioners claimed that the mida'/:olam~based protocol would cause them to suffer intolerable pain and that execution by Protocol A, pentobarbital, Was an available, less painful execution alternative 'l"he Petitioners_, at the close of proof, moved to amend their pleadings to conform to the evidence to allege that a two-drug cocktail of midaz.olam and potassium chloride was an alternative method of execution 'l"he trial court denied this request `

'lj`he l’etitioners faced a steep uphill battle.. in their efforts to have the midazolam-based protocol declared unconstitutional. Their obstacles, which ultimately proved insurmountablc, included l) inconsistent and unworkable requirements imposed by Glr),s'sz`p v. Gross, 135 S. Ct. 2726 (20l5) and the cloak of secrecy regarding Tennessee executions_; 2) the extraordinary and unnecessary time constraints imposed by this Court; and 3) the State’s evasiveness and last-minute decision about its lethal injection protocol.

To begin with, Glossip, a split 5~4 decision by the United States Supreme Court_, required the Petitioners to prove l) that the State’s execution protocol was likely to cause an intolerable risk of severe pain or needless suffering, and 2) an alternative feasible, readily implemented, available method of execution that would significantly reduce a substantial risk of severe pain. Gloss),'p, 135 S. Ct. at 2736»*37 (quoting Baze v. Rees, 553 U.S. 35, 50, 52 (2()()8)). "l`he Petitioners presented expert testimony that the State’s execution protocol of midazolam, vecuronium broinide, and potassium chloride will cause the inmate being executed to feel severe pain and terror. 'l`his is because midazolam

z On l\fiarch l5, 20 l 8, the Court set the execution dates forZagorski and l\/liller.

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has no analgesic el"t`ects and will not render the inmate insensate to pain; vecuronium bromide causes great anxiety, noxious stimulus, paralysis, and the feeling oi` stit`t`ocatit)it»~all “quite hori,'itic”»-*and potassium chloride, which stops the heart, causes the inmate to have very painful feelings of burning upon injection

Despite this cvidence_, the trial court dismissed the Petitioners’ case because they failed to prove the second Glossip prong of an available alternative execution method that would have reduced a substantial risk of severe pain. 'l`his Glossip requirement has been aptly described as “perverse”’ because it replaces the Eighth Amendment’s categorical prohibition against cruel and unusual punishment with a conditional one.4 'l"hus, under G/ossz'p, even it` the Petitioners establish that the State’s execution method will cause them to experience needless suffering or intolerable pain, the State may still carry out the execution unless the Petitioners also prove an available alternative method for their own executions

Considering the liighth Amendment’s clear prohibition on ‘“cruel and unusual punishments,” the focus here should have been on whether the Petitioners proved that the State’s execution method was likely to cause needless sul"t`ering and pain. Yet the l’etitioners’ claims and evidence ot` intolerable pain and torture were not the basis ot` the trial court’s decision and thus not reviewed on appeal

l\lot only is G[ossz'p"s available alternative requirement perverse, it is also unworkable ln Tcnnessee, executions are cloaked in secrecy, which makes it dit`t`icult--if not impossible~»tor the Petitioners to establish an available alternative to the State’s method ot` execution "l"ennessee Code Aiinotated section l()~7»5()4(h) (Supp. 2017) protects the identity ot` individuals or entities directly involved in the execution process The trial court here prohibited identification of the Department’s agents who were involved in procuring execution drugs, such as pentobarbital, and of its potential suppliers

ln addition to the heavy burden imposed by Glossz`p and the cloak of secrecy surrounding executions§ the Petitioners were operating under extraordinary time constraints because ot` the Court’s scheduling ot` Irick’s execution on August 9. After the Petitioners filed their challenge, the starting pistol was tired and the race to execute began 'l"he trial court had to last-track the case so that the parties could present their evidence and the trial court could prepare and tile findings of fact, conclusions of law, and its decision before the August execution date. 'l`he trial court set the trial to begin on .luly 9_, 2()18, giving the parties less than live months to effectively conduct written discovery, litigate discovery disputes, take discovery depositions, locate and retain expert

3 Mc(}ehee v. Hu!chin.ro)z, l37 S. Ct. 1275, l27{) (2017) (Sotomayor, J., dissenting). 4 fica G/r)ssip, l35 S. Ct, at 2793 (Sotomayor, J., dissenting)i

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witnesses, research legal issues, tile trial briet`s, and prepare for trial. The discovery schedule was so compressed that the trial court eliminated summary judgment as an option because the Petitioners lacked the time to complete discovery and respond to a motion for summary judgment Stxi`iicie11t time for investigation, research, and discovery was out oti`the question because of the looming execution date.

T he rush to execute here is in stark contrast to the measured Way previous challenges to the State’s lethal injection protocols have been handled "1`his case Was pending in the trial court only 156 days Yet the 2002 challenge to the State"s protocol using sodium pentothal pancuronium bromide and potassium chloiide took twice as long lt was pending in the trial coult tot 311 days.5 See Al)d111’Rc1/1111a111). B1edesen 181 S W 3d 292 (l`enn. 2005) ce/z 61@1115€<;{,547 U S.1147 (2006) 11 te 2013 challenge to the Statc s protocol using compounded pentoba1bita1 took t`out times as long, lasting 645 days in the t1ia1 court, which included an appeal of a discove1y dispute6 See West v Sc/zofield, 519 S.W.?)d 550 (1`enn. 2017), ce1l denied sub 110112 West v Par/cer 138 S Ct 476 (2017), cert denied sub 110111. Abdu)"’Rczh)nczn v. Pa)"ke)', 138 S. Ct. 647 (2018), 1'€/1’§ derzz'ed, 138 S. Ct. 1183 (2018).

The Petitioners, already shouldering the heavy burden imposed by Glossz'p, the cloak ot` secrecy surrounding executions, and the fast pace of the proceedings, were also impeded by the State s evasiveness about the availability ot`pentobarbital until the eve of trial and by its last minute decision to eliminate pentoba1bital as an execution piotocol lhe parties took discovexy depositions throughout .,lune with the Petitioners reasonably assuming that 1’1otocol A (peiitobaibital) was an available alteinative execution method under G/ossz`p. lust a tew horns bci`oic the parties filed theii tiial briefs on July 5 2018 the Department adopted a revised execution piotocol that abandoned Protocol A leaving only P1otocol 13 But the Departrnent acco1ding to testimony from its Commissione1 had known that pentobarbital was unavailable 101 executions fo1 about two months befoie it retained pentobarbital as a lethal injection method 111 lanuaiy 2018. F ven so, the State failed to notify the Petitionets and failed to take a consistent position on the availability 01 pentobaibital until the eve 01 trial

For example, at the first pretrial hearing on April 11, 2018, counsel for the State dodged the trial court’s questions about the availability of pentobarbital. The trial court, acutely aware of the time constraints Zeroed in on the problem and repeatedly questioned counsel about the availability ot` pentobarbital. "l`he trial court emphasized that the availability of Protocol A was “essential for the case,” and it` that question could not be

5111 AI)¢Ju) 1661/1111¢111 v B)edesen, the plaintiils\ 1`11ed their petition on July 26 2002, and the txiai couit issued its decision on lime 2 2003

6 111 We.r! v, Sc/")ojie/d, the plaintiffs filed their petition on November 20, 2013. i`lie trial began on .Iuly 7, 2015_, and the trial court issued its decision on August 26, 2015.

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answered, the trial court proceedings would be “f`utile and useless,” putting the court as well as the parties in an “untenable position.” The State’s response to the trial court’s - direct question - “Will [Protocol A] be available f`or the August 9th execution?” »~ was “1 can’t answer that question, Your I~-lonor.” 'l` he trial court then correctly observed that “if` you can’t answer [that question] then our proceedings here are really meaningless” and that it created a “Catch 22” dilemma for the court and the litigants '

T he Department’s Commissioner testified on June 5, 2018, that the Department would “search out all options to obtain pentobarbital,” but the Department’s records tell a different story Those records show that the Depa1t1nent’s designated drug procurer only looked 101 pentoba1bital ove1 a fo oui- -nionth period from .March 2017 through July 2017. lhere appeals to have been no activity alter July 2017 until June 20, 2018, when the drug procurer einaiied a potential supplier, stating that the Department was “still searching f`or USP grade pentobarbital” and “circlin,g back around with folks"' to check on availability for purchase That said, Texas officials used pentobarbital on July 17, 2018, to execute Christopher Young; on June 27, 2018, to execute Danny Bibie; on l\/lay 16, 2018, to execute Juan Castillo; on April 25, 2018, to execute Erick Daniel Davila; on March 27, 2018 to execute Rosendo Rodriguez 111; on Februa1y 1, 2018. to execute John David Battaglia; on January 30, 2018, to execute William Rayt`;ord and on January 18, 2018 to execute /\nthony Shoie.7A11d in Geo1gia, officials used pentobarbital to execute Carlton l\/fichael Ga1y on l\/[arch 15 2018, and Robert Butts, Jr.-, on May 4, 2018.81\/lost1ecently, pentoba1bital was used in T exas on September 26 2018, to execute I`roy Claik; and on Septembei 27, 2018 to execute Daniel Acl<er.9

'l`he State’S retention of`pentobarbital as an execution protocol until July 5, 2018, and its refusal to take a firm position on the availability of` pentobarbital for Iricl<’s August execution refutes the State`s a1gument that the Petitioners had actual notice as early as Feb1ua1y 2018 that pentobarbital was not available Petitioners could have 1easonab1y inf`eried the availability of pcntobaibital f1011`1 the Department’ s adoption 01 it in Januaiy 2018, the Depaitment s retention of it until July 5 2018 and the State s representations in the trial court.

As the trial court accurately observed, the availability of` pentobarbital was essential to the case, and without the State answering the question as to the availability of pentobar,bitalt the tiial couit p1oceedings weie meaningless Fox the State to provide the answei on the eve ot tiiai while effectively evading theguestion 101 months was patently unfair to the Petitioners.

7 Death Penalty lnf`ormation Center (DPIC), li`xecz/!ion L/'s! 201 83 littps://deathpenaltyinfo.org/execution~list-2018.

8 Id.

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1"`or all these reasons, the Petitioners were denied due process in the form of a fundamentally fair process "‘At its core, the right to due process retiects a fundamental value in our American constitutional system.” Boa’dz'e v.` COm/zeclz'cut, 401 U.S. 371, 374 (1971). An essential requirement of due process is notice and an opportunity to be heard. P/rillips v. sz‘e Bd. ofRegerzis, 863 S.W.2d 45, 50 (Tenri. 1993) (citations omitted). The purpose of notice is to give the affected party the opportunity to marshal its proof, Id. (citation omitted). “‘Due process is fiexible and cails for such procedural protections as the particular situation demands.”’ Ic/. (`quoting Ar)‘)istrong v. Manzo, 380 U.S. 545, 552 (1965)). '1`11e factors we consider in determining whether a party has been deprived of due process are 1) the private interest affected; 2) the risk that the procedures in place would erroneously deprive the affected party of that private interest; and 3) the government’s interest, including any fiscal or administrative burdens that would be caused by additional or substitute procedural requirements Id.

There could hardly be a more substantial private interest at stake than making sure that the 13etitioners are not made to suffer intolerable pain when the State puts them to death and that their federal and state constitutional rights to be free from cruel and unusual punishment are protected Resetting the scheduled execution dates would have gone a iong way in giving the Petitioners a fair and meaningful opportunity to be heard and would not have placed any appreciable fiscal or administrative burdens on the State.

ln the end, the difficulties of meeting the inconsistent and unworkable Glossip requirements and the cloak of secrecy surrounding "f`ennessee executions; the extraordinary and unnecessary time constraints imposed by the Court due to the impending, and seemingly unalterable, execution dates; and the State’s evasiveness about its execution method and its last~minute changes to the lethal injection protocols combined to deny the Petitioncrs due process in the form ofa fundamentally fair processl

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”l`his is the Court’s first opportunity to review a trial court decision on the constitutionality of the midazolam-based protocoi. The Petitioners, faced with the prospect of suffering needlessiy while being put to death by the State, deserve meaningful appellate review of the trial court’s ruling. Mfeaningfui review includes giving counsel adequate time to review trial testimony_, research and brief the issues, and effectively advocate for their clients in their appellate briefs and at oral argument Only then ca11 the Court, after reviewing the record from the trial court, reading the parties’ briefs, listening to the oral arguments, and studying applicable legal authorities, render its decision. The Court should not make its decision in haste, but after thoughtful and careful deliberation 'i`he parties and the public deserve no less. 1~iere, the super“~expedited schedule imposed by the Court denied the Petitioners meaningful appellate review.

"l`o begin with, the Court unreasonably reduced the time for the Petitioners to file the record with the appellate court clerk from a minimum of 105 days (or more if an objection to the record is filed or if the record needs to be supplemented) to nine days (scven days excluding a weekend). 'fhis was rather extraordinary given that the trial lasted ten days, with twenty-three witnesses testifying and 139 exhibits admitted into evidence '1`lre record filed with the appellate court clerk consisted of twenty~nine volumes of court filings, thirty~two volumes of trial transcripts, and nineteen volumes of trial exhibits totaling well over 10 000 pages 111 reducing the Petitioners’ time for filing the record, the Court failed to consider that filing the record is a0 three part process involving the parties the trial court clerk and the trial court judge 0The trial court had no opportunity to review and approve the record and the parties had no chance to point out any errors in the record Not surprisingly the record-prepared 111 great haste~»~is not completely accurate Thc 1.,ead Petitioners noted that their counsel "corrected apparent transcription errors,` but that they did “not have the physical ability to correct all of the errors in this record prior to September 6 2018."1 ikewise, the Miller Petitioners pointed to specific “transcription errors [that] c hange[d]t the substance of testimony.”

Next, the Court cut in half the parties’ briefing period from seventy-four days to thirty~seven days (twenty~six days, excluding weekends and Labor Day). Abd'ur’Ra/imarz 1). Pcrrker, No. M2018~01385~SC-RD()-CV (Tenn. Aug 13, 2018) (Lee, 11., dissenting). Tlic head Petitioners had only fifteen days to review the record and to prepare and file

their brief while the l\/liller Pctitioners had just ten days to review the record and to prepare and frle their brief and the State had fifteen days to brief the case Aba’w ’Rahman v. Pn)ker, No. l\/12018 01385 SC RDO CV ('lenn. /-\ug 27 2018)(1,,ce J dissenting)

Tire detrimental effects of the limited briefing schedule are evident from the parties’ briefs fl`he Mfiller Petitioners admitted in their brief that they did not have time to brief fully the trial court’s errors:

10 S`ae zl/)dzz) Rah))zcm v. Pcr)ke)‘, No l\/12018- 01385 SC RDO CV (”l`cnn Aug 13, 2018) (luee., dissenting) (1eviewing the time frames afforded each participant to fulfill their role, including sixty days for thc Petitioners to file a certified transcript of the proceedings with the tr ial court clerk forty- -five days for the trial court clerk to assenrblc and transmit the record to the appellate court clerk after the filing of the transcr ipt; and approval of the transcripts and exhibits byt the trial court judge within thirty days after the expiration of the time for filing objections).

n “Leati Petitioners” refers to the twenty~nine original )etitionexs who filed a Notice of Appeal in the Court of Appeals on .luly 30 2018.‘ l\/liller Petitioners” refers to the four remaining petitioners7 David l`:arl l\/iiller Nicholas itidd Sutton Stcphen l\/lichael West and larry l\/chay, who filed ar Notice of /\ppeal 111 the Court of Appeals and 111 this Court on August 23 2018

12 l'*`or instance, on page three of their brief`, the l\/iiller Petitioners called the Court’s attention to an error in Volume XLIl, page 1795 of the transcripts of proceedings (“lt was a very firm decision that because there was no memory created does [sic- doesn’t] mean that the suffering was not oceurring.”).

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l)ue to the “compressed super-expedited” briefing schedule, the i\/liller Plaintif`f`s primarily raise in this brief due process violations because those errors undermine the integrity of the entire proceeding below. Undcrsigned counsel acknowledges the rule on waiver that usually applies when an issue is not fully briefed on appeal, however, counsel does nor have the time or resources 10 b)"l'efa// significant errors which occurred 1711 the proceedi)'zgs below and are rejected in fha Charzce)‘y Court ’s`/i/ial oz'der.

(Emphasis added). The i\/liller Petitioners also noted in their reply brief that it was “prcpared under an extreme time limitation and likely contains errors,” and that it lacked an introduction, all relevant f`acts, legal authority, record cites and an exhaustive analysis Predictably, given the time constraints, the Lead Petitioncrs had to late~f`rle their brief"s table of authorities The State even had to file a substitute brief to correct erroneous page references in the table of contents, in the table of author'itics, and in its response to the issues raised by the l\/iillcr Petitioncrs, as well as citation errors

Previous appeals of constitutional challenges to the State’s lethal injection pr otocols have not been rushed or decided hastilyl his case was pending only fifty-six days from the time the Court reached down and assumed jurisdiction on August 13, 2018, until it released its opinion today Yet the appeal of the 2002 challenge to the State’s protocol using sodium pentothal, pancuronium bromidc, and potassium chloride was pending in this Courtf or 231 days.13 Sce Abdtt)"Ra/rmarr v B)'edesen 181 S W. 3d 292 ('1 e11r1. 2005), cert denied 547 11 S. 1 147 (2006) l`he appeal of the 2013 challenge to the Statc’ s protocol using compounded pcntobarbital lasted 391 days in this Court." Sec Wes! v. Schr)fre]d, 519 S.W.3d 550 (l_cnn. 20117), cert denied sub nom Wesf v, Pa)‘ke)~, 138 S. Ct. 476 (2017), cert denied sub nom Abdw"]€cr/rmcm v. Parkcr, 138 S. Ct. 647 (2018),/'@/1’gde)1ied, 138 S. Ct. 1183 (2018).

The Court does not cure the unfairness of this super-expedited appeal by allowing the head lf’etitioners to tile a brief with an argument section that exceeded the fifty- -page

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more minutes for oral argument

Given the gravity of the issues in this appealt thc extensive recor,d and the required legal analysis, the Court s accelerated schedule deprived the Pctitioners of meaningful appellate review. "l"his mad dash to the finish line was unnecessary Nothing

13 111 /f[)dz/)‘ ’Rcr/rmmr v. B)'edesc)r, this Court granted the plaintiffs application for permission to

appeal on february 28, 2005, and filed its opinion on October 17, 20051

ll 111 Wesr 11 Sc/rQ/ie/d, this Court granted the Statc’s motion to assume jurisdiction on lvlarch 2, 2016,111111 filed its opinion on i\/iarc1,128, 2017

prevented the Court from giving the l~"etitioners, who are facing possible torture during their upcoming executions, appellate review that is fair and meaningful

Hl,

Because these proceedings have not been fundamentally fair to the Petitioners, l dissent

sift/\RON G. LEE, JUSTICE