Thursday, September 21, 2006

Florida Support - individuals who care

With Love From Johnny Robinson

"The State of Florida took a lot from me but they couldn´t take away who I am.
I refuse to become the monster they wish to portray me as and that´s a victory in itself."~~ November 17, 2001 ~~

Johnny´s thought about the Death Row, written Oct 16, 2002
after the execution of Rigoberto Sanchez:
"This place tends to depress people to the point where they would rather be dead than continue attempting to exist under these conditions.
Couple that with the constant threat of death and the absolute certainty one has no other future to look forward to – getting it over with begins to look for better.
It´s bad when you´re taken away a man´s liberty and his dignity but this place can even take away one´s humanity and all senblance of hope.
It´s at that point one questions the sense in continuing the struggle".

In memory of Amos and Clarence

He who thinks this self a killer
and he who thinks it killed,
both fail to understand;
it does not kill, nor is it killed.
It is not born,
it does not die;
having been,
it will never not be;
unborn, enduring,
constant, and primordial,
it is not killed
when the body is killed.

Wednesday, September 20, 2006

Court refuses to delay Hill execution - SCOTUS BLOG

Wednesday, September 20, 2006

Court refuses to delay Hill execution - SCOTUS BLOG

03:24 PM Lyle Denniston Comments (0)

Dividing 5-4, the Supreme Court on Wednesday refused to delay the execution in Florida of Clarence E. Hill, thus clearing the way for the state to carry out the sentence around 6 p.m. this evening. The Court issued no opinion. The brief order noted that Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens would have granted a stay.

The Court acted on Hill's stay application alone (06-A-301), and thus took no action on his pending cert petition, Hill v. McDonough (06-6545). If the execution goes forward under a death warrant signed by Florida Gov. Jeb Bush, that will moot Hill's appeal since that seeks an opportunity to challenge the method of lethal injection.

By denying the stay request, the Court leaves Hill without a remedy that the Court last June had ruled he could pursue: a civil rights challenge to the lethal injection protocol used in Florida. At the time the Court issued that ruling, it was aware that he had filed his delay request shortly before an execution was scheduled -- the very issue that has now led the Eleventh Circuit Court to refuse to delay the execution further, after concluding that defense lawyers had engaged in delaying tactics.

Without an opinion from the Court, however, it is unclear whether the Court majority actually agreed with the Eleventh Circuit on its rationale. The practical result, though, was that the Eleventh Circuit denial of a stay stands, and the execution may now proceed.

It would have taken the votes of five Justices to grant a stay. An earlier post on HIll's plea to the Court can be found here, containing links to the application and the petition for review.

Serena and Clarence - We LOVE YOU

We are all in this together

Love from Sissel

From Janneke with love ...

From Clarence Hill with love ...

Greetings from Clarence Hill

More on Hill

From Attorney Karl Keys BLOG :

Tuesday, September 19, 2006

More on Hill

Courtesy of the SCOTUSBlog, find the Clarence Hill stay application here. The petition for certiorari can be found here. The second question in the petition is pretty dead on and the petition does a fair job laying out the current state of the law. From that petition:
Yet despite the recognition by numerous states and circuits that lethal injection procedures merit review, executions have proceeded in other states - - states which have lethal injection protocols substantially similar, if not exactly the same, as states which have halted their executions. Texas, for example, has executed 21 people this year by lethal injection, fully half of all the executions in the country for 2006. (site last visited September 17, 2006). As one judge in a Tennessee capital case cogently observed regarding the wide disparity and arbitrary nature of court responses to lethal injection challenges and theirarbitrariness:

[T]he dysfunctional patchwork of stays and execution going on in this country further undermines the variousstates’ effectiveness and ability to properly carry out death sentences. We are currently operating under a system wherein condemned inmates are bringing near identical challenges to the lethal injection procedure. In some instances stays are granted, while in others they are not and the defendants are executed, with no principled distinction to justify such a result.Alley v. Little, No. 06-5650 (6th Cir. May 16, 2006)(Martin, J., dissenting from denial of a rehearing en banc)(emphasis added).A review of lethal injection litigation around the country demonstrates that courts have developed essentially two methods to handle lethal injection claims. One approach, utilized by the Fourth, Fifth, and (now) Eleventh Circuits, is to deny both the claim and the stay based upon dilatoriness, without any examination of the merits in assessing the equities involved. (See, e.g., White v. Johnson, 429 F.3d 572, 573-74 (5th Cir. 2005); Harris v. Johnson, 376 F.3d 414, 417-18 (5th Cir. 2004), and Hill v. McDonough, Case No. 06-14927 (2006)). The second method, which has been used in the Eighth, Ninth, and Tenth Circuits, is that a stay is denied, but the case is not dismissed.

Rather, the case is permitted to proceed on a fasttrack basis, and if the plaintiff develops enough evidence, a stay is then granted. Patton v. Jones, 2006 U.S. Dist. LEXIS 54429 (Okla. W.D. Aug. 4, 2006) affirmed, stay denied, Patton v. Jones, 2006 U.S. App. LEXIS 22312 (10th Cir. Aug. 25, 2006), Patton v. Jones, petition denied, stay denied, 2006 U.S. LEXIS 5379 (Aug.29, 2006); Morales v. Hickman, 2006 WL 335427 (N.D. Cal., Feb. 14, 2006) reviewed at Morales v. Hickman, 2006 WL 391604 (9th Cir., 2006); Taylor v. Crawford, 445 F.3d 1095, 1097- 98 (8th Cir. 2006) on remand, Taylor v. Crawford, 2006 U.S. Dist. LEXIS 42949, 22 (June 26, 2006). Thus, in Patton, Morales, and Taylor, a determination on the merits was made in a very limited amount of time, and enough discovery and testimony were adduced to allow meaningful consideration to be given to the plaintiffs’ claims. Clearly, these cases demonstrate that it is possible to litigate and resolve lethal injection issues quickly.

permalink comments links to this post

Quick roundup from

Quick look around the web, the various courthouses and media outlets:

SCOTUSBlog looks at Clarence Hills chances of cert a second time. The question presented in Hill's case will eventually be granted cert, the question is if not now, when, as their appears to be a fairly wide split among the lower courts on the questions presented although Courts on all sides of the question have been fairly discrete about not citing the splits.

Will Florida execute Clarence Hill today?

From the BLOG Sentencing, Law and Policy :

September 20, 2006

Will Florida execute Clarence Hill today?

Almost exactly nine months ago, at roughly 6pm on January 24, 2006, Clarence Hill was strapped to a gurney and IV lines were run into his arms as Florida's execution team awaited the expected denial of Hill's final appeal to the Supreme Court. After about an hour in which Hill lay on the gurney anticipating his execution, Justice Anthony Kennedy issued a stay to allow the Supreme Court more time to consider whether Hill could attack Florida's lethal injection protocol through a 1983 action.

Though Hill prevailed in the Supreme Court, as detailed in this newspaper article, Florida is poised in less than twelve hours to try again to kill Clarence Hill again. And the merits of his 1983 action have still never been considered. Capital Defense Weekly has more on Hill's final(?) appeal to the Supreme Court, and Human Rights Watch has this interesting open letter to Florida Governor Jeb Bush urging him to postpone Hill's execution.

As I have documented via many blog posts and this recent article, much has transpired in the death penalty world over the last nine months. However, for Clarence Hill, it appears that the story will have a particular Shakespearian quality: Hill's litigation tale seems likely to end up as one "full of sound and fury; signifying nothing."

Speaking of "sound and fury; signifying nothing," this newspaper article also spotlights Florida Governor Jeb Bush's unsurprising reaction to the massive ABA report criticizing Florida's death penalty (details here):

''I believe that the death penalty process here is protected, correctly so, by an appeals process that is extensive,'' Bush said, adding that if anything, it is unfair to crime victims and their families. ''It can go on for more than 10 years. For a lot of people, that is denial of justice,'' Bush said.

Some recent related posts:

Up and down the Hill again
Will Clarence Hill get another SCOTUS ex machina?
My lethal injection piece on SSRN
ABA produces mega-report assailing Florida's death penalty

Tuesday, September 19, 2006

Bush defends death penalty

Originally published September 19, 2006

Bush defends death penalty

By Jim Ash Capitol Bureau Chief

Governor Jeb Bush defended the death penalty this morning, two days after the American Bar Association released a harshly critical report on how the ultimate punishment is handed out in Florida, and a day before a Pensacola cop killer is scheduled to be executed.
"I believe that the death penalty process here is protected, correctly so, by an appeals process that is extensive," Bush said, adding that if anything, it is unfair to crime victims and their families.


"It can go on for more than 10 years. For a lot of people, that is denial of justice," Bush said. The 454-page report, compiled by Florida attorneys who support and oppose the death penalty, found the process is racially biased and suggested that with an average of more than one exoneration for every three executions, there are not enough safeguards to protect the innocent.Florida has executed 60 inmates since the death penalty was reinstated in 1973. During the same time, 22 condemned prisoners were exonerated.Bush defended the rate, saying that inmates have their death sentences overturned for many reasons, not necessarily because they are innocent.Bush's comments come a day before 48-year-old Clarence Hill is scheduled to die by lethal injection for killing police Officer Stephen Taylor during the Oct. 22, 1982, robbery of a savings and loan in Pensacola.Bush predicted that Hill's latest arguments, that lethal injection is cruel and unusual punishment, will continue to be rejected by the courts. He pointed out that the method has been used 16 times in Florida, and survived numerous appeals."So my expectation is that the execution will go as planned," he said. Bush recently signed a law eliminating a deadline for condemned killers to prove their innocence through DNA testing. He said his office was studying the report, which recommends, among other things, the creation of a commission to study wrongful convictions and claims of innocence.He warned lawmakers to take a recent Florida Supreme Court ruling to heart that suggested Florida should require death penalty recommendations by juries be unanimous. A proposal to do just that was defeated earlier this year in the Legislature."I think it’s definitely worth consideration," Bush said. "When the Supreme Court sends a signal like that, it should be not just cast aside, because ultimately, they will have some say in how the death penalty will work."

Docket USSC No. 06A301 Application for stay - Clarence Hill

No. 06A301

Clarence Edward Hill, Applicant
James R. McDonough, Secretary, Florida Department of Corrections, et al.

Lower Ct:
United States Court of Appeals for the Eleventh Circuit
Case Nos.:

~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Sep 18 2006
Application (06A301) for a stay pending the disposition of the petition for a writ of certiorari, submitted to Justice Thomas.

Attorneys for Petitioner:
D. Todd Doss
725 Southeast Baya Drive
(386) 755-9119
Suite 102
Lake City, FL 32025-6092
Party name: Clarence Edward Hill

Attorneys for Respondents:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: James R. McDonough, Secretary, Florida Department of Corrections, et al.

Docket USSC - No. 06-6545 - Clarence Hill

No. 06-6545
Clarence Edward Hill, Petitioner
James R. McDonough, Secretary, Florida Department of Corrections, et al.

September 18, 2006

Lower Ct:
United States Court of Appeals for the Eleventh Circuit
Case Nos.:

Decision Date:
September 15, 2006

~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Sep 18 2006
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due October 18, 2006)

Sep 18 2006
Application (06A301) for a stay pending the disposition of the petition for a writ of certiorari, submitted to Justice Thomas.

Sep 18 2006
Brief of respondent James R. McDonough, Secretary, Florida Department of Corrections, et al. in opposition filed. (Distributed)

Attorneys for Petitioner:
D. Todd Doss
725 Southeast Baya Drive
(386) 755-9119
Suite 102
Lake City, FL 32025-6092
Party name: Clarence Edward Hill

Attorneys for Respondents:
Carolyn M. Snurkowski
Assistant Deputy Attorney General
(850) 414-3300
PL-01 The Capitol
Tallahassee, FL 32399-1050
Party name: James R. McDonough, Secretary, Florida Department of Corrections, et al.

Before execution, be absolutely sure - Clarence Hill

September 19, 2006 Florida

Before execution, be absolutely sure
Miami Herald

Just as doctors take every precaution not to cause a wrongful death, so,t oo, should the state of Florida take every precaution not to execute an innocent person. To Florida's shame, though, the state is doing much less than it should be doing to prevent an innocent person from being wrongfully executed. The governor and state Legislature have the ability to change laws and tighten procedures to make it less likely that the wrong person will be killed by the state -- and they should do so promptly.

22 have been spared

State officials already know that Florida leads the nation in the number of exonerations of Death Row inmates. Since 1973, at least 22 inmates set to be executed have been spared, primarily based on their claims -- affirmed by appellate courts -- that they were innocent or wrongfully convicted. During this same period Florida executed 60 persons.

Now there is more evidence that Florida's death penalty is badly flawed. In an exhaustive report released Sunday, the American Bar Association found that the state's death penalty is ''fraught with problems,'' including continuing racial disparities.

The report compared Florida procedures with 93 ABA standards and found that Florida was in compliance with only eight. An ABA experts' panel unanimously recommended 11 changes, including requiring a unanimous verdict for death sentences; having qualified lawyers represent capital-case defendants; creating uniform statewide standards for deciding who is charged with a capital crime; and rewriting the rules forbidding death sentences and executions of persons with serious mental disabilities.

The panel also recommended that the state look into racial and geographical disparities, noting that since the death penalty was reinstated in 1972 no white defendant has been executed for killing a black person. The ABA's most-important recommendation is that Florida create a commission to study its wrongful convictions and develop an assessment of what can be done to prevent innocent people from being executed.

Save the innocent

It may be politically difficult for state lawmakers to take up this cause because being ''tough on crime'' is often a winner at the polls. But if Florida is going to execute those who commit heinous crimes, it should do all that it can to make sure the judicial system is fair and unfailingly accurate.

Gov. Jeb Bush's recent support of a law that eliminates the deadline for defendants claiming to be innocent to complete DNA tests certainly will be helpful. But no DNA evidence is available for most defendants who claim to be innocent. So it is up to the state to find and fill other gaps in the system that could result in the death of an innocent person.---Source : Miami Herald

States Await Ruling on Use of Lethal Injection

September 19, 2006 Florida/US

States Await Ruling on Use of Lethal Injection

The New York Times

MIAMI - Clarence E. Hill was strapped to a gurney last winter, a few moments from death, when the United States Supreme Court halted his execution.

Mr. Hill had claimed that Florida's lethal injection method caused so muchpain that it violated the Constitution's ban on cruel and unusualpunishment. The Supreme Court said in June that the federal district court in Tallahassee had to consider the argument on procedural grounds. That cleared the way for death row inmates around the country to file lawsuits that would otherwise have been prohibited by tight restrictions on petitions for habeas corpus.

But last month, before the district court could review the case, Gov. Jeb Bush rescheduled Mr. Hill's death for Sept. 20. Then, to the surprise of death penalty opponents who thought the district court would take testimony on the state's lethal injection method, the court swiftly rejected the case again. In Atlanta, the United States Court of Appeals for the 11th Circuit upheld the decision last week.

Now, with Mr. Hill scheduled to die Wednesday, he has again appealed to the Supreme Court. And lawyers on both sides of the debate are waiting to see how his case may affect the way lethal drugs are administered in 37 states.

Courts in California and Missouri have allowed extensive hearings this year on the lethal injection process, delaying executions until they can study the question of just how painful the current methods are.

Oklahoma recently changed its protocol so that the condemned receive more anesthesia before they are killed, and a federal judge in North Carolina ordered that a brain monitor be used to make sure an inmate was unconscious when the final drug was given. South Dakota delayed its first execution in 59 years last month after Gov. Michael Rounds said lawmakers needed time to review lethal injection protocols.

Other states, including Texas and Virginia, have continued to execute inmates since the Supreme Court's ruling on the Hill case without holding evidentiary hearings on the specific procedures and combinations ofc hemicals used.

"Nationally there is an inconsistency in the review of lethal injection challenges," said Richard C. Dieter, executive director of the Death PenaltyInformation Center, a research group that opposes capital punishment. "If the Florida case was that serious for the Supreme Court, I would think at a minimum in Florida they would hold an evidentiary hearing to hear from both sides about whether there are particular problems."

The case of Mr. Hill, who killed a police officer in a 1982 robbery in Pensacola, is peaking days after the American Bar Association called for substantial changes in Florida's death penalty laws. In March, the Florida Supreme Court urged the Legislature to require jury decisions to be unanimous in capital cases. Florida is one of the few states without such arule.

Florida switched to lethal injection in 2000 after flames shot from an inmate's head during his execution by electric chair.

When he reinstated Mr. Hill's death warrant last month, Governor Bush said in a letter to prison officials that the stay from the Supreme Court had expired. But Mr. Hill's lawyer, D. Todd Doss, said Mr. Bush, a Republican who supports the death penalty, could instead have filed a motion to accelerate the rehearing of the case. On Monday, Mr. Bush said the delays in Mr. Hill's case had made "a mockery"of the judicial system.

"The challenges have been exhausted," he told reporters in Tallahassee."Unless there's other challenges, I have a duty to sign death warrants, and the system has a duty to carry out the sentence.

"Like most other death-penalty states, Florida uses a combination of three chemicals in lethal injection: one to anesthetize the inmate, a second to paralyze the body and a third to stop the heart. Mr. Hill, 48, has based his case on a 2005 study published in the British medical journal The Lancet that concluded that the anesthetic could wear off before an inmate died.

The Supreme Court ruled unanimously on Mr. Hill's case in June, saying that inmates facing execution by lethal injection could invoke a federal civil rights law to challenge the state's choice of drugs and the manner in which they are administered.

In rejecting Mr. Hill's civil rights claim a second time, a three-judge panel of the 11th Circuit court in Atlanta said he had waited too long to file it - he did so four days before he was to be executed in January - and was merely trying to stall.

Mr. Hill's complaint charged that Florida had adopted its lethal injection procedure without medical research or expertise; that "unqualified" prison officials carried it out; and that the drugs used would "create a dangerous likelihood that Mr. Hill will be conscious throughout the execution process and, as a result, will experience an excruciatingly painful and protracted death."

Mr. Doss, his lawyer, said he had hoped for a hearing in which witnesses could testify to whether Florida's method of lethal injection caused undue pain. But Carolyn M. Snurkowski, assistant deputy attorney general for Florida, said the Supreme Court had made no such guarantee.

"No one has thus far suggested that he is entitled to any kind of hearing,"Ms. Snurkowski said. "The Supreme Court said the equities lie with the state, and if he's too late in filing this, he might not have a vehicle by which he can get relief."

In California, a federal judge is to review the state's lethal injection method in a hearing scheduled to start next week and is to decide whether it presents an unacceptable risk of inflicting extreme pain in violation of the Eighth Amendment. And in Missouri, a federal judge ruled last week that a new protocol for lethal injection still fell short of providing constitutional protections, preventing executions there.

"Whether we win or lose," Mr. Doss said, "it's not going to go away. Each and every person coming up behind us is going to raise this issue."
---Source : The New York Times

Issue Remains As Clock Runs Out - Clarence Hill


Group Calls for Changes in Death Penalty System Sep 17, 06
U.S. Court Rejects Death Row Appeal Jun 29, 06
Capital Statute Upheld Jun 27, 06
Execution Method Challenges OK'd Jun 13, 06
Justices Debate Lethal Injection Challenge Apr 27, 06
U.S. Justices Deny Death Row Appeal Mar 21, 06
Two Death Row Appeals Rejected Mar 10, 06

Published Tuesday, September 19, 2006

Issue Remains As Clock Runs Out

St. Petersburg Times

Eight months ago, the U.S. Supreme Court stunned legal scholars by delaying the execution of Florida death row inmate Clarence Hill with just minutes to spare.

The court ruled that Hill should be able to challenge his execution through a civil rights lawsuit, a move that some scholars thought would tie up executions for months or years.

But lower courts quickly dismissed Hill's claims that lethal injection amounted to cruel and unusual punishment, prompting Gov. Jeb Bush to reschedule Hill's execution for Wednesday evening.

Legal experts say it's unlikely that Hill will win another 11th-hour reprieve. Still, the case has left a lasting impression on death penalty law and gives other condemned inmates more standing to challenge lethal injection.

"The Hill case brought the lethal injection issue to the forefront," said Hill's lawyer, D. Todd Doss. "It surely opened the door to lethal injection litigation in Florida."

Hill, 48, is on death row for the 1982 murder of Pensacola police Officer Stephen Taylor. A jury convicted Hill of shooting Taylor during a bank robbery.

Hill claims that the three-drug cocktail used in Florida executions is cruel because it causes excruciating pain because a painkiller wears off before the process is complete.

On Jan. 24, Hill reportedly was strapped to a gurney, with lines attached to his arm, when Justice Anthony M. Kennedy stayed his execution.

The court then agreed to hear the argument that Hill could challenge lethal injection through a civil rights lawsuit -something the federal district court had not allowed.

The justices unanimously agreed that Hill could pursue that lawsuit, but gave no direction, however, as to how the lower courts should rule.

The U.S. District Court in Tallahassee turned Hill down, accusing him of using delaying tactics and filing his challenge too late.

On Friday, the 11th U.S. Circuit Court of Appeals in Atlanta also denied Hill.

The clock continued to tick toward execution."

All the U.S. Supreme Court said was that he had the ability to file the action," said Carolyn Snurkowski, an assistant Florida attorney general who handles death penalty appeals. "We've always maintained that he's too late in bringing this claim."

But veteran death penalty defense lawyer Martin McClain said that doesn't make sense. If the federal district court for years didn't allow the civil rights lawsuit and only accepted it after the U.S. Supreme Court ruling made them, how could they then accuse Hill of taking too long to file it?

"It's sort of like circular logic," McClain said. "They said you can't do it, but now that you've done it, even though we said you couldn't do it, you took too long to do it.

"The odds are always against getting the U.S. Supreme Court to intervene in one individual case," McClain added. "I don't know if they'll be troubled enough by the illogic in the 11th Circuit's ruling to take it or not."

Doss said it's unlikely the U.S. Supreme Court agreed to hear this case simply so a lower court could quickly deny the claim without so much as a hearing on whether lethal injection is unconstitutionally cruel.

"It's pretty hard to believe that when the Supreme Court remanded this case, that they did so with the thought that it would be summarily denied with nothing," he said.

Robert Batey, a professor at the Stetson University College of Law, said it makes the legal system look bad to execute someone before all the issues are resolved.

"I'm one who believes you should keep the defendant alive until you can resolve it, but the courts have become so frustrated with the delaying tactics of death row defendants that they simply refuse to grant stays any longer," he said.

Bush said Monday that it was his duty to set a date for Hill's execution."Mr. Hill has had ample time to go through the process to the point where there is a mockery made of the judicial system," Bush said.

Hill's dramatic story has unfolded as the death penalty has been under attack on several fronts in Florida and nationwide.

Lethal injection challenges have stalled executions in several states and botched executions have drawn negative publicity. Public support for the punishment has sagged.

In Florida, the state Supreme Court challenged lawmakers to make it harder for juries to impose the death penalty. Currently, it is easier for a jury to send someone to death row in Florida than in any other state, the opinion said.

And just this week, the American Bar Association issued a 400-page report that found a series of problems with the state's death penalty.

Florida Assessment Team

Florida Assessment Team

Professor Christopher Slobogin, Chair of the Florida Assessment Team, is the Stephen C. O’Connell Chair and Professor of Law at the University of Florida Fredric G. Levin College of Law. He is also Associate Director of the Center on Children and the Law and an Affiliate Professor of Psychiatry to the University of Florida School of Medicine. Professor Slobogin’s teaching and scholarship focus primarily on criminal law, criminal procedure, and mental health law. He has co-authored various books including Law and the Mental Health System: Civil and Criminal Aspects (2003) and Criminal Procedure: An Analysis of Cases and Concepts (2000), Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (1997), and has written numerous articles on the fourth amendment, the insanity defense, the admissibility of expert testimony, and preventative detection. Prior to his tenure at the University of Florida, Professor Slobogin was Director of the Western State Legal Aid Society as well as Director of the Virginia Forensic Psychiatry Training and Evaluation Center. Professor Slobogin received his undergraduate degree from Princeton University and his J.D. and LL.M. degrees from the University of Virginia.

Judge O.H. Eaton, Jr. is a judge on the 18th Judicial Circuit Court of Florida, where he has served in every division of the court including criminal, civil, family, juvenile, and probate. He served as Chief Judge from 1989 to 1991. Prior to his election to the court in 1986, Judge Eaton was in private practice from 1973 to 1986, and served as Assistant State Attorney from 1971 to 1973. Judge Eaton is a member of the Florida Bar Criminal Law Section Executive Council and the Supreme Court Criminal Court Steering Committee. He previously served as chair of the Florida Bar Criminal Procedure Rules Committee, and as chair of the Criminal Justice Section of the Florida Conference of Circuit Judges. He was also a member of the Florida Sentencing Commission. Judge Eaton has received numerous awards and honors including the State Attorney’s Victim’s Rights Award (1987), the Florida Council on Crime and Delinquency’s Distinguished Service Award for the Judiciary (1988), and the Williams/Johnson Outstanding Jurist Award (1998). Judge Eaton received both his undergraduate and law degrees from the University of Florida.

Dr. Mark R. Fondacaro is an Associate Professor of Psychology at the University of Florida and an Associate Director of the Levin College of Law’s Center on Children and Families. Dr. Fondacaro has a wide range of teaching and research interests—including procedural and distributive justice, ecological jurisprudence, and family conflict resolution. In addition to his faculty and administrative duties at the University of Florida, Dr. Fondacaro maintains a private clinical psychology and consulting practice in Gainsville, Florida. Before joining the University of Florida faculty in 1997, Dr. Fondacaro was a Research Assistant Professor at the University of Nebraska’s Center on Children, Families and the Law. He also previously practiced environmental law at Pillsbury, Madison & Sutro in San Francisco, California. Dr. Fondacaro received his B.A. from the State University of New York at Stony Brook and his Ph.D in Clinical Psychology from Indiana University-Bloomington. He received his post-doctoral training in Clinical and Community Psychology at Stanford University. Dr. Fondacaro is also a graduate of Columbia Law School.

Michael J. Minerva retired from the Florida Public Defender’s Office for the 2nd Judicial Circuit in 2001 after working there for approximately thirty years. Since his retirement, Mr. Minerva has served as a training consultant for the Public Defender of the Ninth Judicial Circuit in Orlando, and as a coach for the Florida State University mock trial team. While at the Public Defender’s Office, Mr. Minerva served as Assistant Public Defender and as Public Defender, as well as Director of the Office of Capital Collateral Representative of Florida, the state agency representing death sentenced individuals in post-conviction. Minerva was the 1992 recipient of the Craig Barnard Memorial Award from the Florida Public Defenders Association and the 2003 recipient of the Steven M. Goldstein Criminal Justice Award from the Florida Association of Criminal Defense Lawyers. Mr. Minerva is currently a member of the Tallahassee Bar Association and the Tallahassee Chapter of the Association of Criminal Defense Lawyers. Mr. Minerva received both his undergraduate and law degrees from the University of Florida.
Mark Schlakman serves as the Program Director for the Center for the Advancement of Human Rights’ Liberty in the Balance Project at the Florida State University. Prior to joining the Center’s staff, Mr. Schlakman held several government positions at the state and federal levels including, special counsel to Florida Governor Lawton Chiles; advisor to Governor Jeb Bush during his transition into office; senior advisor to Governor Kenneth H. “Buddy” McKay, Jr. during his tenure as President Clinton’s White House Special Envoy for the Americas, and as a special advisor to U.S. Senator Bob Graham of Florida. In addition to his numerous appointments, Mr. Schlakman also served as a foreign affairs officer for the U.S. Department of State. Mr. Schlakman is a graduate of the University of Miami and of the Georgetown University Law Center.

Justice Leander J. Shaw, Jr. is a former Justice on the Florida Supreme Court. He was appointed to the Supreme Court by Governor Bob Graham in 1983, where he served until his retirement in 2003. Prior to his appointment to the Supreme Court, Justice Shaw served on the First District Court of Appeals. Before his judicial appointments, Justice Shaw was appointed to the Florida Industrial Relations Board, and was in private practice at the Tallahassee law firm of Harrison, Finegold & Shaw. Justice Shaw served on Florida’s State Attorney’s Office’s staff, heading the Capital Crimes Division and serving as an adviser to the grand jury. Justice Shaw is a member of the American Bar Association and the National Bar Association, as well as the Florida Bar, the Florida Government Bar, and the Tallahassee Bar Associations. Justice Shaw received his undergraduate degree from West Virginia State College and his J.D. from Howard University Law School. He holds honorary Doctor of Law degrees from West Virginia State College, Nova University, and Washington and Lee University. Justice Shaw was also awarded an honorary Doctor of Public Affairs degree from Florida International University.

Harry L. Shorstein is the State Attorney for the Fourth Judicial Circuit of Florida. He was appointed State Attorney in 1991 by Governor Lawton Chiles. During his tenure as State Attorney, Mr. Shorstein has implemented a successful and highly acclaimed juvenile justice program that combines prevention with punishment and rehabilitation. The approach is based on early intervention for at-risk youth, incarceration for violent and repeat offenders, and extensive education and rehabilitation programs. Mr. Shorstein has experience in both the defense and prosecution of criminal cases. Prior to his appointment as State Attorney, Mr. Shorstein served as Division Head in the Office of the Public Defender, as well as Division Head and Chief Assistant State Attorney.He also worked in the General Counsel’s office for the City of Jacksonville, Florida. He also was in private practice in Jacksonville, Florida and was in provate practice in Jacksonville for fifteen years. Mr. Shorstein served as a captain in the Third Marine Division during the Vietnam Conflict for which he received numerous commendations, including a Bronze Star. Mr. Shorstein received both his undergraduate and law degrees from the University of Florida.

Sylvia H. Walbolt is a Shareholder with the Tampa law firm of Carlton Fields, where she specializes in federal and state appeals in all areas of litigation including tort, products liability, commercial, constitutional, and employment. At Carlton Fields, she is Chair of the Board of Directors and of the Appellate Practice Group. Ms. Walbolt was a charter member of the Florida Bar, and was named one the top 10 women litigators by the National Law Journal in 2001. She is a Fellow of the American College of Trial Lawyers, and a past president of the American Academy of Appellate Lawyers. Ms. Walbolt has received numerous awards including the Herbert G. Goldburg Outstanding Trial Lawyer of the Year Award in 1998, recognizing professionalism, ethics, and devotion to the practice of law. She was also the first woman recipient of the 2003 George C. Carr Memorial Award which was named after the late Judge Carr and is the highest award presented by the Federal Bar Association’s Tampa Bay Chapter. The award recognizes excellence in federal practice and distinguished service to the federal bar. Ms. Walbolt received both her undergraduate and law degrees from the University of Florida.

Resources on the Administration of the Death Penalty in Florida

Richard L. Rosenbaum, Child's Play No Longer: Children Charged and Tried as Adults in Florida-Ending up in Prison For Life Without Parole, 28 Nova L. Rev. 485 (2004).
L. Elizabeth Chamblee, Time for a Legislative Change: Florida's Stagnant Standard Governing Competency for Execution, 31 Fl. St. Univ. L. Rev. 335 (2004).
Catherine Arcabascio, Freeing the Innocent: Obtaining Post-Conviction DNA Testing in Florida, 28 Nova L. Rev. 61 (2003).
Benjamin F. Diamond, The Sixth Amendment: Where did the Jury Go Wrong? Florida's Flawed Sentencing in Death Penalty Cases, 55 Fla. L. Rev. 905 (2003).
Ken Driggs, Regulating the Five Steps to Death: A Study of Death Penalty Direct Appeals in the Florida Supreme Court, 1991-2000, 14 St. Thomas L. Rev. 759 (2002).
Case Histories: A Review of 24 Individuals Released from Death Row, Florida Commission on Capital Cases, Sept. 10, 2002.
Michael L. Radelet, Recent Developments in the Death Penalty in Florida, Feb. 2002, at
Sentencing Alternatives for Juveniles Indicted for Murder, Interim Project Report 2002-129, Florida Senate (2001).
Donna Buchholz, Modern Day Chateau D'If In Florida? Collecting Dust on the Shelves of Justice: Potentially Exculpatory DNA Evidence Waits For A Turn in the Florida Sunshine, 30 Stetson L. Rev. 391 (2000).
James E. Harrison, The Juvenile Death Penalty in Florida: Should Sixteen-Year-old Offenders be Subject to Capital Punishment, 1 Barry L. Rev. 159 (2000).
Lonn Lanza-Kaduce, Charles E. Frazier, and Donna M. Bishop, Juvenile Transfers in Florida: The Worst of the Worst?, 10 Univ. Fl. J. L. & Pub. Pol'y 277 (1999).
Henry George White, Charles E. Frazier, and Lonn Lanza-Kaduce, A Socio-Legal History of Florida's Juvenile Transfer Reforms, 10 Univ. Fl. J. L. & Pub. Pol'y 249 (1999).
Ken Driggs, The Most Aggravated and Least Mitigated Murders: Capital Proportionality Review in Florida, 11 St. Thomas L. Rev. 207 (1999).
Report to the Commission on the Administration of Justice in Capital Cases, Florida State University, prepared by Isabelle Potts and Gretchen Hirt, Jan. 1999, at
Overview of Judicial Process from Arrest through Post-Conviction, Law Office of the Capital Collateral Regional Counsel Middle Region, Nov. 9, 1998, at
Michael Mello, Outlaw Executive 'Crazy Joe', The Hypnotized Witness, and the Mirage of Clemency in Florida, 23 J. Contemp. L. 1 (1997).
Gary Caldwell, Florida Capital Cases: July 1, 1994-June 30, 1995, 20 Nova L. Rev. 1255 (1996).
Juvenile Justice Transfer Legislation in Florida: Assessing the Impact on the Criminal Justice and Correctional Systems, Florida Corrections Commission (1993-94).
Analysis of Florida Felony Offenders Serving Sentences in County Jails, Corrections Commission (1994).
Gary Caldwell, Capital Crimes: 1993 Survey of Florida Law, 18 Nova L. Rev. 117 (1993).
Gary Caldwell, Capital Crime Decisions: 1992 Survey of Florida Law, 17 Nova L. Rev. 31 (1992).
Michael L. Radelet and Glenn L. Pierce, Choosing Those Who Will Die: Race and the Death Penalty in Florida, 43 Fl. L. Rev. 1 (1991).
William S. Geimer and Jonathan Amsterdam, Why Jurors Vote Life or Death: Operative Factors in Ten Florida Death Penalty Cases, 15 Am. J. Crim. L. 1 (1987/1988).
David W. Doyle, Life or Death in Florida: What Mitigating Evidence will the Judge Consider in Capital Cases?, 4 Cooley L. Rev. 693 (1987).
Linda A. Foley, Florida After the Furman Decision: The Effect of Extralegal Factors on the Processing of Capital Offense Cases, 5 Behav. Sci. & L. 457 (1987).
Michael L. Radelet, Rejecting the Jury: The Imposition of the Death Penalty in Florida, 18 U.C. Davis L. Rev. 1409 (1985).
Michael Radelet and Margaret Vandiver, The Florida Supreme Court and Death Penalty Appeals, 74 J. Crim. L. & Criminology 913 (1983).
Hans Zeisel, Race Bias in the Administration of the Death Penalty: The Florida Experience, 95 Harv. L. Rev. 456 (1981).
Discrimination and Arbitrariness in Capital Punishment: An Analysis of Post-Furman Murder Cases in Dade County, Florida, 1973-1976, 33 Stan. L. Rev. 75 (1980).
Peter W. Lewis, Henry W. Mannle, Harry E. Allen, and Harold J. Vetter, A Post-Furman Profile of Florida's Condemned-A Question of Discrimination in Terms of the Race of the Victim and a Comment on Spenkelink v. Wainwright, IX Stetson L. Rev. 1 (1979).

Human Rights Watch Urges Governor Jeb Bush to Postpone the Execution of Clarence Hill

U.S. :

Human Rights Watch Urges Governor Jeb Bush to Postpone the Execution of Clarence Hill

Human Rights Watch Urges Governor Jeb Bush to Postpone the Execution of Clarence Hill

Letter to the Governor's Office and the State of Florida:

"Governor Jeb Bush
The Capitol 400 South Monroe Street Tallahassee, FL 32399
September 18, 2006

Dear Governor Bush:

Clarence Hill is scheduled to be executed by lethal injection on Wednesday. Mr. Hill has repeatedly filed requests seeking details on the chemicals and procedures that will be used to kill him yet the state has refused to provide Mr. Hill—or the public—with the information he has requested. The information is important because it could indicate whether Mr. Hill will be executed by means that could inflict intense and extended pain during execution. We urge you to postpone Mr. Hill’s execution so that legitimate and well-founded concerns that Florida’s lethal injection protocol may result in cruel and unusual punishment can be examined. We also call on you to order public hearings to review Florida’s lethal injection protocol.

Other states have already taken such measures. Recently, South Dakota Governor Mike Rounds postponed the lethal injection of convicted murderer Elijah Page just days before his scheduled execution, citing concern about the state’s protocols. In California, a judge recently ordered hearings on California’s lethal injection protocol after logs from six recent executions revealed that prisoners’ chests were still moving regularly up and down long after the anesthetic component of the lethal injection should have stopped their breathing. These chest movements suggest the prisoners may have been awake and suffering.

Human Rights Watch has recently researched and documented why lethal injection protocols are increasingly viewed as causing unnecessary pain and suffering. Most people believe lethal injections to be painless. Yet mounting evidence from states across the country—and from Florida execution records—suggests that the current method of lethal injection may in fact be a very painful way to die.

Florida adopted lethal injection executions in 2000—in part because of pressure to do away with the electric chair after a prisoner’s head erupted in flames during a botched electrocution. Since then, Florida has executed sixteen prisoners by lethal injection. Most people believe lethal injections to be painless.

The three-drug lethal injection protocol used in Florida and every other lethal injection state works like this: the condemned prisoner is strapped to a gurney and injected with a massive dose of the anesthetic sodium pentothal, which should render him unconscious. Next he is injected with pancuronium bromide, a drug that paralyzes voluntary muscles, including the lungs and diaphragm. Finally, he is injected with potassium chloride, which should bring swift cardiac arrest.

The problem, however, is that if the anesthetic does not render the prisoner unconscious, he will experience tremendous pain—he will feel himself suffocating from the pancuronium bromide and will feel his veins burning up as the potassium chloride courses to his heart. Potassium Chloride is so painful that U.S. veterinarian guidelines prohibit its use on domestic animals unless a veterinarian first ensures they are deeply unconscious. No such safeguards are observed for human executions. Indeed to our knowledge, neither Florida – nor any of the other lethal injection states – has ever subjected its lethal injection protocol to scrutiny by independent pharmacologists or the public.

Some information on Florida lethal injections is public, despite the efforts of the Florida Department of Corrections. During the June 8, 2000 execution of Bennie Demps it took execution technicians thirty-three minutes to find suitable veins for the execution. In his final statement, Demps said: "They butchered me back there, I was in a lot of pain. They cut me in the groin; they cut me in the leg. I was bleeding profusely. This is a low-tech lynching by poison."

Autopsy reports from the lethal injections of Thomas Provenzano on June 21, 2000 and Robert Glock on January 11, 2001 indicate that executioners had a hard time finding and maintaining intravenous access to their veins—raising doubts about whether the condemned inmates received the lethal injection chemicals in the order and amount necessary to prevent intense suffering before death. Toxicology reports in Missouri and North Carolina also suggest some prisoners may have been inadequately anesthetized before they were killed.

As you know, Florida adopted lethal injection executions in 2000—in part because of pressure to do away with the electric chair after a prisoner’s head erupted in flames during a botched electrocution. Since then, Florida has executed sixteen prisoners by lethal injection. As governor of Florida, you have the responsibility and authority to ensure that the method of execution used does not subject the condemned prisoner to cruel and unusual punishment, such as through infliction of unnecessary and avoidable pain. Available evidence suggests Florida’s three drug protocol fails that test. In resisting court challenges, public information requests, and local and national media attention, Florida has gone to great lengths to keep its residents from knowing how it conducts lethal injections and what has actually happened during recent executions. If Florida believes that its protocols can withstand scrutiny, why the secrecy?

Human Rights Watch believes that all executions are inherently cruel. But if a state is going to have the death penalty, it cannot simply adopt an execution procedure because it looks good. By refusing thus far to subject their protocols to public scrutiny, Florida has failed its residents who entrust them with the awesome responsibility of executing prisoners. We urge you to postpone Clarence Hill’s execution, and order public hearings into Florida’s lethal injection protocols and procedures.

Jamie Fellner Director,
U.S. Program"Source: Human Rights Watch

Monday, September 18, 2006


DOCKET NO. _______
Florida Attorney General,
SEPTEMBER 20, 2006, 6:00 P.M.
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119

continues here :


DOCKET NO. _______
Florida Attorney General,
SEPTEMBER 20, 2006, 6:00 P.M.
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025-6092
Telephone (386) 755-9119
Petitioner, Clarence Edward Hill, applies to this Court
pursuant to 28 U.S.C. § 2201(f) for a stay of his execution,
currently scheduled for September 20, 2006 at 6:00 p.m., and
states as follows:
1. On September 1, 2006, Mr. Hill filed an amended
complaint pursuant to 42 U.S.C. § 1983 in the United States
District Court, Northern District of Florida, Tallahassee
Division. Mr. Hill alleged violations of his right to be free
from cruel and unusual punishment under the Eighth and Fourteenth
Amendments to the United States Constitution. On that same date,
the district court denied Mr. Hill’s complaint for declaratory
and injunctive. Thereafter, the district court denied Mr. Hill’s
motion for reconsideration on September 11, 2006.
2. On September 13, 2006, Mr. Hill filed a Notice of
Appeal. On that same date, Mr. Hill filed in the Eleventh
Circuit an Application for a Stay of Execution and for Expedited
Appeal, which was denied on September 15, 2006.
3. Mr. Hill seeks an Order from this Court for a stay of
execution pursuant to 28 U.S.C. § 2201(f), which provides in
In any case in which the final judgment or decree of
any court is subject to review by the Supreme Court on
writ of certiorari, the execution and enforcement of
such judgment or decree may be stayed for a reasonable
time to enable the party aggrieved to obtain a writ of
certiorari from the Supreme Court.
4. Mr. Hill asks this Court to stay his presently
scheduled execution to allow the Court adequate time to consider
the Petition.
5. This Court's authority to enter a stay of execution has
been analyzed by this Court as involving the following four-part
whether the movant has made a showing of
likelihood of success on the merits and of
irreparable injury if the stay is not
granted; whether the stay would substantially
harm other parties, and whether granting the
stay would serve the public interest. Bundy
v. Wainwright, 808 F.2d 1410, 1421 (11th Cir.
1987). See also, Barefoot v. Estelle, 463
U.S. 880 (1983)
6. Mr. Hill has met the standards attendant to the
granting of a stay of his execution. Each of the criteria is
satisfied in this case.
7. If the requested stay is not issued, Mr. Hill will be
executed at 6:00 p.m. on Wednesday, September 20, 2006. This
execution will carry an unacceptably high risk of being conducted
in a torturous manner in violation of Mr. Hill’s Eighth Amendment
right to be free from cruel and unusual punishment. This
constitutes irreparable injury. See, e.q., Evans v. Bennett, 440
U.S. 1301, 1306 (1979) (Rehnquist, Circuit Justice, granting a
stay of execution and noting the “obviously irreversible nature
of the death penalty”); O’Bryan v. Estelle, 691 F.2d 706, 708
(5th Cir. 1982) (the “irreversible nature of the death penalty”
constitutes irreparable injury and weighs heavily in favor of
granting a stay); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir.
1996) (holding that continued pain and suffering resulting from
deliberate medical indifference is irreparable harm).
Additionally, the State’s violation of Mr. Hill’s Eighth
Amendment rights alone validates a presumption of irreparable
harm. See Associated General Contractor’s of California, Inc. v.
Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir.
1991) (an alleged constitutional infringement will often alone
constitute irreparable harm).
8. There will be no harm to other parties if a stay of
execution is granted. Mr. Hill will remain in custody at Florida
State Prison, where he has been held since his conviction and,
most recently, since the stay of execution was entered by the
Supreme Court of the United States on January 25, 2006. A
relatively brief continuation of the status quo will cause
absolutely no harm to other parties. See Gomez v. U.S. Dist. Ct.
For Northern Dist. Of Cal., 966 F.2d 460, 462 (9th Cir. 1992)
(Noonan, J., dissenting from grant of writ of mandate) (“The
state will get its man in the end. In contrast, if persons are
put to death in a manner that is determined to be cruel, they
suffer injury that can never be undone, and the Constitution
suffers an injury that can never be repaired.”)
9. Although there are competing public interests,
ultimately one factor favors the issuance of the temporary relief
sought. Certainly, the public has an interest in the execution
of Mr. Hill pursuant to the judgment of the Florida Courts. More
importantly, however, it has an interest in determining that Mr.
Hill’s execution will be carried out consistent the with
requirements of the Eighth Amendment. Additionally, the State
has an interest in not subjecting Mr. Hill to the excruciating
and torturous pain likely involved in the lethal injection
process Florida intends upon utilizing. See Sims v. State, 754
So.2d 657 (Fla. 2000). It is therefore paramount that Mr. Hill’s
weighty constitutional claims be resolved on the merits.
10. Further, as set forth in his petition, by arbitrarily
setting an execution date while this case was awaiting remand,
the State has attempted to manipulate the process and deny Mr.
Hill his right to have this unconstitutional method of execution
reviewed on the merits. Certainly, it is in the public interest
not to permit the State to deprive Mr. Hill of his right to
pursue his claims, and thereby achieve its ultimate goal – to
prevent Florida’s lethal injection procedure from being subjected
to any meaningful scrutiny.
11. The likelihood that Mr. Hill will prevail on the merits
of his claims is demonstrated by the discussion presented in
detail in his Petition, which examines recent developments in
similarly situated cases where the merits have actually been
examined. Given the success in those cases, a stay of execution
and full and fair review are appropriate here.
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished to Carolyn Snurkowski, Assistant
Attorney General, Office of the Attorney General, Plaza Level 1,
The Capitol, Tallahassee, FL 32399, this 18th day of September
/s/ D. Todd Doss
D. Todd Doss
Florida Bar No. 0910384
725 Southeast Baya Drive
Suite 102
Lake City, FL 32025
Telephone: 386-755-9119
Facsimile: 386-755-3181
Attorney for Mr. Hill

Will Clarence Hill get another SCOTUS ex machina?

From the Blog Sentencing, Law and Policy

September 18, 2006

Will Clarence Hill get another SCOTUS ex machina?

I am not betting that the Supreme Court will intervene again to keep the state of Florida from executing Clarence Hill based on his Eighth Amendment claims against Florida's lethal injection protocols.

But, I would not have expected the first stay that SCOTUS issues back in January, which came after Hill was already strapped to a gurney with IV lines ready to start his execution. After the Eleventh Circuit's (bloodless?) dismissal of Hill's 1983 action late last week (details here),

I have no prediction about whether the Justices will care this time around. SCOTUSblog has some of the details here surrounding Hill's application for a stay of his scheduled execution.

Some recent related posts:

Up and down the Hill again
My lethal injection piece on SSRN
Missouri still struggling with its execution protocol
My take on the other side of Hill

Hill seeks delay of execution

From Scotus Blog :

Monday, September 18, 2006

Hill seeks delay of execution

Posted by Lyle Denniston at 02:45 PM

Clarence E. Hill, a Florida death row inmate who won a Supreme Court decision in June allowing him to pursue a challenge to the protocol used to carry out executions by lethal injection, on Monday asked the Supreme Court to delay his scheduled execution so that he can get a chance to make that very challenge. His attorney argued in the stay application: "By arbitrarily setting an execution date while this case was awaiting remand, the State has attempted to manipulate the process and deny Mr. Hill his right to have this unconstitutional method of execution reviewed on the merits." The attorneys accused the state of using tactics to prevent "any meaningful scrutiny" of its lethal injection procedure.

Hill's application ((06-A-301) sought a stay of the scheduled execution Wednesday evening, until the SCt acts on a new petition for review (06-6545), in the case of Hill v. McDonough. In that petition, Hill's lawyers are seeking to delay the execution so that his constitutional claim can go forward. The stay application can be found here. The petition for certiorari can be found here. The cert petition raises three somewhat complex questions; the second of these implies that the Circuit Court wrongly failed to issue the mandate in the case and only sent it back to the District Court after the Florida goveroer had re-set the execution date, "citing the lack of judicial activity." The questions are articulated in the front of the linked petition.

The Eleventh Circuit Court on Friday refused to stay Hill's execution; it did so without ruling on his challenge to Florida's lethal injection protocol. It said that his lawyers had been engaging in delaying tactics, and that it would not allow itself to be drawn into a "protracted, and ultimately futile," review of his case. It said it was "denying his request for an injunction based upon our independent analysis of the equities."

The Circuit Court said that, in the Supreme Court's June 12 decision sending Hill's case back to lower courts, the Supreme Court had said that federal courts should protect states from "dilatory or speculative suits" seeking to delay the enforcement of criminal sentences.


On the last page of its Hill opinion, the Supreme Court cites Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam), indicating it is still good law. Given that precedent, the Eleventh Circuit and the District Court are clearly correct. The cases are not distinguishable. A method-of-execution claim raising objections that have been known for years is raised at the eleventh hour to stop the execution. In Gomez, the Court lifted a stay issued by a lower court. I don't see the Court turning around and doing the opposite here.
Posted by: Kent Scheidegger at September 18, 2006 03:18 PM

Kudos to Jeb Bush for resetting the date. It's good to see states willing to test federal stays.
Posted by: federalist at September 18, 2006 03:43 PM

Up and down the Hill again

September 15, 2006
Up and down the Hill again

Clarence Hill won a big battle a few month ago: in early June (as detailed here and here and here), the Supreme Court held that he could proceed with his § 1983 claim alleging that
Florida's lethal injection protocol is unconstitutional. But now it appears he is about to lose the war to avoid his execution.

Today, the Eleventh Circuit in Hill v. McDonough, No. 06-14972 (11th Cir. Sept. 15, 2006) (available here), denied Clarence Hill's request for a stay of execution so he could effectively appeal the district court's decision last week to dismiss his § 1983 claim. As detailed in this newspaper article, it does not appear that Hill has even received an adjudication of his claim on the merits in the district court, and the Eleventh Circuit decision today never considers the substance of Hill's underlying Eighth Amendment claim.

Here is what it says instead:
In light of Hill's actions in this case, which can only be described as dilatory, we join our sister circuits in declining to allow further litigation of a § 1983 case filed essentially on the eve of execution.

It will be interesting to see if the Supreme Court might intervene yet again, or if Florida will finally get to execute Mr. Hill for the crimes he committed two decades ago.

Some recent related posts:

My lethal injection piece on SSRN
Missouri still struggling with its execution protocol
My take on the other side of Hill
Hill lethal injection case finally kicked back to district court
South Dakota Governor halts execution over lethal injection concerns
Lethal injection litigation creates de facto moratorium in Ohio and...

Amnesty International USA Condemns Florida's Rush to Execute


Monday, September 18, 2006

Amnesty International USA Condemns Florida's Rush to Execute

Clarence Hill Scheduled for Execution September 20,

Even Though Courts Still Have Not Fully Considered His Civil Rights Claim (Washington, DC) - Amnesty International USA (AIUSA) today urged Florida Governor Jeb Bush to issue a stay of execution to Clarence Hill, who is scheduled to be executed on Wednesday, September 20.

AIUSA Executive Director Larry Cox has written to Governor Bush, calling for a moratorium on all executions in the state.

Hill was originally scheduled to be executed on January 24 and was strapped
to the gurney, awaiting the administration of the lethal injection cocktail,
when the U.S. Supreme Court intervened in his case. The Court decided to
consider whether Hill was entitled to file a challenge to the
constitutionality of lethal injection under federal civil rights law.

This action by the Court set off a flurry of legal activity in more than adozen states regarding the constitutionality of lethal injection as it iscurrently administered. On June 22, 2006, the Justices ruled unanimously in
favor of Hill, allowing him to proceed with his challenge to the state'slethal injection process as a civil rights claim. Yet to date, no court has
granted the required thorough consideration of his claim. In an attempt to
spur the courts to act, Governor Bush announced in August that Hill'sexecution would proceed. This order directly contradicts the governor'sstatement earlier in the year that he would not sign a death warrant until
the issues raised in Hill's case were fully resolved.

"Governor Bush's about-face in this case is outrageous," said Sue
Gunawardena-Vaughn, the Director of AIUSA's Program to Abolish the DeathPenalty. "Allowing this execution to proceed without a single examination of
the numerous problems associated with Florida's administration of lethal
injection is an affront to common sense and common decency.

" This execution is scheduled at a time when other groups are raising
significant questions about Florida's death penalty system. Yesterday, a
blue-ribbon assessment panel appointed by the American Bar Association (ABA)revealed that Florida's capital punishment policies fail to meet basic
standards of fairness and justice. The nine-member assessment team's close
examination of eight key areas of death penalty administration found that
the state does not have adequate safeguards in place to prevent the
execution of an innocent person; 22 people have been released from death row
in Florida due to evidence of their wrongful conviction. In addition,Florida is the only state in the country that does not require a jury to be
unanimous in recommending the death penalty.

"Now is the time for citizens and policymakers to engage in a thoughtful and
honest assessment of our state's death penalty," said Mark Elliott, AIUSA'sFlorida Death Penalty Abolition Coordinator. "Now is not the time to rush to
execute Clarence Hill - or any other death row inmate for that matter. It is
stunning that we are proceeding with such haste at the very moment when our
state's death penalty system has been revealed to be so fundamentally

Contact: AIUSA's Media Relations Unit, 202-544-0200, ext. 302 Mark Elliott, AIUSA's Death Penalty Abolition Coordinator for Florida,727-215-9646 (cell) ---Source : Amnesty International

Death row appeals - Capital offense?

September 15, 2006
By: Jordana Mishory
Critics are questioning whether state officials timed the release of a recent critical report about the chief attorneys of the two Florida death penalty appeals offices to undermine the program and ensure that
the two men are not reappointed.

The report, by the Florida Department of Financial Services, headed by Republican Tom Gallagher, the state’s chief financial officer, was released
late last month. That was just days before the Florida Supreme Court
Judicial Nominating Commission began soliciting applications for
the Capital Collateral Regional Counsel posts for South and Central Florida.

The report alleged that the counsel for South Florida, Neal Dupree, mismanaged the agency and misspent state dollars. It said Dupree spent
more than $100,000 of state money lobbying to save the CCRC from
Gov. Jeb Bush’s effort to end the program. It also said the counsel for
Central Florida, Bill Jennings, spent $119,000 on a lobbyist for the same purpose. In addition, it said Dupree illegally sent two attorneys to Cuba
in 1999 to investigate a case and paid a recent hire before she started
working. Dupree denies all allegations of wrongdoing.

Dupree originally was appointed in 1998 by Gov. Lawton Chiles and was reappointed three times by Gov. Bush. Jennings was appointed by Bush in 2001 and reappointed once. The term of appointment is three years.

“I guess we represent our clients so well that it’s time to fire m e,” Dupree
said in an interview Wednesday.

Jennings declined to comment about the report.

Rejecting complaints that the report was released to coincide with the reappointment process, Tami Torres, a spokeswoman for the
Department of Financial Services, said the staff released the report
when they “were satisfied that the report was thorough and accurate.”

State Sen. Victor Crist, R-Tampa, who serves on the Commission on
Capital Cases — which oversees the CCRC program and the state’s
registry list of private lawyers who handle post-conviction petition cases
— said the commission will discuss the report’s finding at its meeting on Monday.

But Roger Maas, the commission’s executive director, said the report
would not be on the agenda. Maas said the governor’s office will be looking
into the report’s allegations. The governor’s office did not return a call for comment by deadline.

Supporters of the CCRC agency — whose 29 state-employed lawyers
represent death row inmates in post-conviction habeas corpus petitions
— said some of the allegations in the state report are erroneous. Crist said there’s nothing in state law that prohibits the CCRC offices from hiring lobbyists.

The report, which was triggered by whistle-blower complaints from former CCRC employees, urged Gallagher to recover the money spent on the
lobbyists from Dupree and Jennings personally

The CFO has not decided whether to ask Dupree and Jennings for the
money back as the report recomm ends.

CCRC supporters note that Gov. Bush and other conservative Republican leaders long have sought to kill the respected agency and switch to a
system of hiring private lawyers to represent defendants in the complex
habeas cases. Bush and his allies have fought to speed up the death penalty process, and have blamed the appellate process for delaying executions.

State Rep. Jack Seiler, D-Pompano Beach, said the timing of the report’s release was suspect because of its proximity to the reappointment
process. He noted that both Dupree and Jennings have been vocal
about their opposition to plans to disband or privatize the CCRC.
“My concern is that this report may be used as a death knell to
disband the southe rn and middle districts and try to go to the
registry program,” Seiler said.

Seiler said he plans to address some of these issues raised in the
report in the next legislative session. “If dollars are being misused
and wasted, those are things I intend to address,” he said. “This could
be a situation where we need to put some regulations in place and
add some accountability and transparency.” But, he added, if the
allegations are used to eliminate the CCRC program, it would be
like “killing an ant with a sledgehammer.”

CCRC’s fate on the line

The Legislature established CCRC offices in Fort Lauderdale, Tampa and Tallahassee in 1997.

Post-conviction petition appeals involve claims of
fresh evidence of innocence, prosecutorial misconduct or ineffective
counsel. Experts say such cases require experienced, skilled attorneys
and hundreds of hours of work.

The program became a national model
for other states in handling post-conviction petition work. Yet, just six
years after the creation, the agency was fighting for its survival.

Gov. Bush and other conservative Republicans proposed to close
the offices and outsource the work to attorneys on the private registry list.

Under a bill pushed through in 2003, the Legislature next year is slated to receive a report from the state auditor general comparing the cost-
effectiveness of representation by the CCRC and private attorneys on a
state registry. Lawmakers could decide whether to continue the CCRC or replace it with a privatized program. The 2003 law eliminated the
CCRC’s northern office in Tallahassee.

Both Republican and Democratic lawmakers and prominent members of the legal community have fought
to save the CCRC. Supporters say the CCRC has provided quality representation and saved the state money by ensuring that proceedings
didn’t need to be redone because of ineffective counsel.

Early last year,
Florida Supreme Court Justice Raoul G. Can tero III, a Bush appointee, criticized the general quality of work by private attorneys in post-conviction capital cases, saying the work of CCRC attorneys generally is superior.
A 2001 report by the Le gislature’s Office of Program Policy and
Government Accountability sharply criticized the state-run private
registry program.

Last month’s investigative report by the
Florida Department of Financial Services assailed Dupree and Jennings
for hiring lobbyists Martin McDonnell and Allen Higginbotham in
2003 to convince lawmakers to preserve their program.

According to the report, the CCRC offices are not allowed to hire lobbyists because a state statute prohibits members of the executive branch from using state
funds for lobbying. The report recommended that state CFO Gallagher
recover the funds paid to the lobb yists.

But Sen. Crist, who wrote the
bill that created the CCRCs, disputed that interpretation. He said the Legislature made sure that the CCRC was not part of the executive branch because that would pose a major conflict of interest in representing defendants.

He noted that the executive branch is headed by the governor,
who signs death warrants. Crist said it also would be a conflict to have the CCRC fall within the judicial branch, because the Florida Supreme Court decides whether to uphold or overturn death sentences.

An April advisory opinion from the Florida attorney general’s office stated that the CCRC is
not part of the executive branch.

The Department of Financial Services
report also contended that Dupree violated state and federal laws when
he sent two attorneys to Cuba to do investigative work on a case.

said in an interview that the fact that a client is from Cuba shouldn’t
preclude the office from being able to do the in-depth investigation of his upbringing. He added that he doesn’t remember all the details of the
lawyers’ trip to Cuba because it occurred seven years ago.

The report
also said Dupree improperly spent public funds when he placed a new
hire on the state payroll before she began working full-time and that he purchased a home computer with office funds for his personal use.

Dupree complained that the report did n ot adequately incorporate his extensive responses to the charges. He also said the investigators interviewed him months before the report was released, but his comments were only
included as an addendum.

The main body of the report stated that Dupree repeatedly refused to be interviewed.

“By refusing to produce public
records and by refusing repeated requests for an interview, Mr. Dupree
himself impeded the department’s ability to complete the report,” DFS spokeswoman Torres said in an e-mail. She also said that the department
staff began to write the initial report when it appeared that they would be unable to interview Dupree.

“Rather than substantially re-write the initial report, the staff chose to address the Dupre e interview in an addendum,” Torres wrote. Dupree has hired attorney David Bogenschutz to represent
him. “The report is a one-sided hatchet job totally designed to mess with
our region and the middle region,” Dupree said .

Seeking reappointment

Despite the report, Dupree said he is reapplying for the CCRC post but
that he is apprehensive about his chances of being appointed. Rep.
Seiler also expressed concern about Dupree’s chances given the
release of the report.

In contrast, Bill Jennings said he is confident
that he will be reappointed.

A three-year study comparing the
performance of CCRC lawyers with private lawyers on the state registry
is due out in January. Dupree said he has been working closely with
the auditor general’s office on the study for the past two and a half years
Jim Dwyer, the audit manager, said the report will examine the
effectiveness of the CCRC versus the private registry program. He
declined to comment further.

Dupree said he fears that if he is not closely involved in the final part of the study, the CCRC program will not be
properly represented before the Legislature. His successor, he argued,
won’t be sufficiently familiar with the agency or the auditing process to
make the best case for the CCRC.

The chair of the Supreme C ourt JNC,
Tina McCain Matte, a Fort Myers publicist, said she has not yet
received any applications for the two CCRC positions, though she
has received a number of phone inquiries. Matte said she was unaware
that Dupree and Jennings planned to reapply. All nine members of the
JNC are Bush appointees.

Applications are due by Sept. 29, with
interviews scheduled for Oct. 6. The JNC will forward three names for
each position to the governor. Bush leaves office in January.

Both the
JNC and The Florida Bar have been promoting the application process
through e-mails targeted to potential candidates in the criminal defense
field as well as mailings to all members of the Bar.

Matte said that during
the last CCRC appointment proc ess three years ago, there were few
applicants. The annual salary for the position ranges between $75,000 and $133,000 and candidates must be a member of good standing in The Florida Bar for the preceding five years.

Matte said the JNC “has a responsibility to ensure that Gov. Bush has an excellent field of candidates to consider when making appointments from the applicants we recommend.”

A source who
did not want to be identified said Gov. Bush and other conservatives
strongly dislike the CCRC because it aggressively represents death row
inmates, while they favor speeding up the death penalty process.

“No one
likes providing legal counsel and spending money on people who committed the most heinous of crimes,” the sourc e said. “There are people who are in leadership positions that would like to see the CCRC not exist and never appreciated the fact that they had representatives in the legislative process fighting for the resources.”

U.S. Rep. Jim Davis of Tampa, the Democratic candidate for governor, said via e-mail that he hopes the Departm ent of Financial Services report was not politically motivated. But he said that any problems with the management or administration of the CCRC should be addressed.

“For several years, the CCRCs have played an important role
while serving as one of the state’s main safeguards against miscarriages of
justice in death penalty proceedings,” Davis said. “I look forward to
reviewing the auditor general’s report.”

Davis’ Republican opponent,
Attorney General Charlie Crist, did not return calls for comment.

Jordana Mishory can be reached at
or at (954) 468-2616.
Neal Dupree photo by Melanie Bell

Death Penalty Appeal

Death Penalty Appeal

A death row inmate is set to be executed on Wednesday, but an appeal before the federal courts could stay that execution again.

Clarence Hill is trying to fight his death sentence. He says Florida’s execution method of lethal injection is cruel and unusual punishment, a violation of the 8th Amendment.

Some studies show the anesthesia used in the lethal injection does not protect from excruciating pain.

Last June, the U.S. Supreme Court ruled that lower courts had to consider Hill's case as a civil rights violation.

Hill is accused of killing a Pensacola police officer during a bank robbery in 1982.

According to a new report by the American Bar Asscoiation, the Florida death penalty system needs a major overhaul. The report identified 11 problem areas in the state's death penalty system.

Some of those problems include:

the number of death row inmates who have been exonerated. There have been 22 since 1973, which is more than any other state in the country.

The report also found a significant amount of death sentences have been imposed on people with severe mental disabilities.

Jurors in Capital cases are routinely confused about the role they play when deciding whether a convict should get the death penalty.

Lack of transparency in the clemency system and in charging practices.

In addition, statistics show a suspect in Florida is more likely to get the death penalty for killing a white victim, than for killing a minority.

For more information tune to Central Florida News 13. Only on Bright House Networks.

Michael Peltier: All eyes on Florida for death penalty showdown

Michael Peltier: All eyes on Florida for death penalty showdown

By Michael Peltier (Contact)

Monday, September 18, 2006

TALLAHASSEE — The eyes of the nation will turn to Florida this week as combatants in the longstanding debate over the death penalty watch to see who will blink in a showdown between Florida Gov. Jeb Bush and the U.S. Supreme Court.

In January, the nation's high court stepped in to stop the execution of Clarence Hill, who was moments away from being Florida's latest death row inmate to be put to death by lethal injection, the method of choice for most states that mete out the ultimate punishment.

Minutes before his scheduled demise, Justice Anthony Kennedy put a hold on the procedure. The conservative jurist was responding to an appeal by Hill's attorney that Florida's three-drug death cocktail — a process that puts an inmate to sleep, paralyzes the lungs, then triggers a heart attack — was cruel and unusual because the inmate may feel pain but be unable to respond.

Kennedy's ruling sent the case back to federal court to determine if further hearings were needed. Last month, Bush signed another death warrant for Hill, setting his execution date for 6 p.m. Wednesday.

Bush's decision put the ball back in the court's court. Last week, a federal judge in Tallahassee refused to take testimony on whether the procedure itself was flawed. The case is now before the 11th Circuit Court of Appeals, which could rule on the case as early as today.

Hill was sentenced to death more than two decades ago for the murder of a law enforcement officer in Pensacola. He has so far survived three death warrants.

What's pretty clear is that the case will return to the U.S. Supreme Court before Wednesday. What's less clear is whether the high court will allow the identical issue to come before them without any substantive hearings lower down the chain. The 376 inmates on Florida's death row will likely be paying attention.

Affordable housing meeting held in Tampa

Nearly 400 leaders from around the state converged on Tampa Bay last week to address the unmistakable need for affordable housing in Florida.

In an attempt to spur further legislative action when lawmakers return in March, the Florida Chamber of Commerce assembled a who's who of policymakers and industry leaders to look at ways to slow the loss of affordable housing in a state where service sector jobs dominate the economy.

"This is one instance where the failure to act means that the problem will fix itself – people will stop moving to Florida, growth will stop and as a result, housing prices will drop," said Frank Ryll, Florida Chamber Foundation president, in a prepared statement to open the summit.

"Or we can diversify our economy and bring an educated, trained work force to Florida and continue to grow as a state. We have a choice and by gathering the stakeholders here today we have agreed to address the issue and make sure that Florida progresses and grows."

Last session, lawmakers led by Rep. Mike Davis, R-Naples, and others pumped more than $500 million into affordable housing efforts. That was in addition to hundreds of millions more for hurricane repair and mitigation. Davis said the push would be a multi-year effort.

From lawyer Karl Keys blog - Clarence Hill

From lawyer Karl Keys blog :

The lethal injection in litigation surrounding Clarence Hill is about to reach another crucial turning point, Hill v. McDonough.

The Eleventh Circuit denies relief on a narrow ground, that his petition should have been brought earlier. Hill, who is scheduled to be killed by Florida on the twentieth, was also denied a stay. The Court in Hill earlier addressed the issue of question of how a lethal injection challenge can be brought but not when, especially in light of the dueling concerns of undue delay vs. ripeness.

11 circuit order in Clarence Hill September 15, 2006



September 15, 2006


No. 06-14927
D.C. Docket No. 06-00032-CV-SPM


Appeal from the United States District Court
for the Northern District of Florida
(September 15, 2006)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

Petitioner Clarence E. Hill, currently an inmate on Florida’s death row,
moves this court for a stay of execution and expedited appeal of the dismissal of
his pending action pursuant to 42 U.S.C. § 1983, in which he alleges violations
and threatened violations of his rights under the Eighth and Fourteenth
Amendments to the U.S. Constitution. We find that Hill does not meet the
standard for injunctive relief, and accordingly we deny his petition.
The basic facts of the underlying case resulting in Hill’s death sentence are
set forth in the decision of the Florida Supreme Court affirming Hill’s conviction
and death sentence on direct appeal. Hill v. State, 515 So. 2d 176, 177 (Fla.
1987). Over the course of more than 20 years, Hill has pursued various
unsuccessful appeals and collateral proceedings seeking to have his conviction
and death sentence overturned. On January 24, 2006, four days before his
scheduled execution, Hill filed a civil complaint under 42 U.S.C. § 1983. In his
complaint, Hill alleged that the particular three-drug lethal injection method used
by Florida to carry out executions constituted cruel and unusual punishment in that
the administration of the first drug might insufficiently render the condemned
prisoner unconscious. Thus, a condemned prisoner might suffer severe pain
caused by the administration of the second and third drugs in the execution series.
The day after Hill filed his complaint, the district court dismissed his claims
for lack of jurisdiction, holding that Hill’s action was effectively a successive
petition for a writ of habeas corpus filed without leave and, thus, ran afoul of 28
U.S.C. § 2244(b). Hill v. Crosby, No. 4:06-CV-032-SPM, 2006 WL 167585, at
*2–*3 (N.D. Fla. Jan. 21, 2006). On appeal, this court affirmed, denying Hill’s
application for a stay. Hill v. Crosby, 437 F.3d 1084, 1085 (11th Cir. 2006). The
Supreme Court stayed the execution, granted certiorari and reversed, holding that
Hill’s claim could properly be brought as a § 1983 action where it challenged only
the particular lethal injection protocol being used by the state, not the validity of
lethal injection sentences generally. Hill v. McDonough, 546 U.S. ---, 126 S. Ct.
1189, 1190, 163 L. Ed. 2d 1144 (2006) (mem.); 547 U.S. ---, 126 S. Ct. 2096,
2102, 165 L. Ed. 2d 44 (2006). On remand, we further remanded the case to the
district court for consideration on the merits. Hill v. McDonough, --- F.3d ---,
2006 WL 2472727, at *1 (11th Cir. Aug. 29, 2006).

Thereafter, in the course of one day – September 1, 2006 – Hill filed an
amended complaint and request for a preliminary injunction, the State filed a
response and motion to dismiss, and the district court issued an order denying the
injunction and dismissing the complaint. On September 5, 2006, Hill moved for
reconsideration, which motion was denied by the district court on September 11.
Although Hill generally characterizes his motion as one for a “stay of execution,” it is 1
apparent that he petitions this court for a preliminary injunction, not a stay of the district court’s
order. The action of the district court leaves nothing for this court to stay, as the dismissal of the
complaint and denial of reconsideration leave no further action to be taken by the district court.
Instead, we treat Hill’s motion as a request for an order temporarily enjoining the State from
carrying out Hill’s execution until his appeal in this case can be decided.

Now, Hill asks this court to stay his impending execution to allow for an expedited

At the outset, we note that we do not here review the district court’s order
denying Hill’s request for injunctive relief and dismissing his complaint. By his
current motion, Hill asks only that we delay the execution and expedite his appeal.
Were we to grant the relief that Hill seeks, we would only reach a review of the
district court’s decision after receiving the parties’ arguments via an accelerated
briefing schedule. With Hill’s execution scheduled to be carried out within a
matter of days from our receipt of the instant motion, we decline to engage in that
protracted, and ultimately futile, sequence of events.

Instead, we dispose of Hill’s motion by denying his request for an
injunction based upon our independent analysis of the equities. In its decision
remanding Hill’s action to this court, the Supreme Court noted that it did not rule
on whether a condemned § 1983 plaintiff challenging the method of execution
might be eligible for a stay of execution to allow him to pursue his suit, but that
“federal courts can and should protect States from dilatory or speculative suits” in
recognition of the “important interest in the timely enforcement of a sentence.”
Hill v. McDonough, 547 U.S. at ---, 126 S. Ct. at 2104. The Court further noted
that “a stay of execution is an equitable remedy. It is not available as a matter of
right, and equity must be sensitive to the State’s strong interest in enforcing its
criminal judgments.” Id. Thus, we consider Hill’s motion for injunctive relief
anew, but with the clear indication from the Supreme Court in this case that we
may deny Hill’s request if the equities demand that result.

As with any application for injunctive relief, our analysis turns in part on
the type of injunction being sought. Hill’s request for a preliminary injunction is
not predicated on any independent cause of action; instead, he requests the
injunction solely for the purpose of allowing time to pursue his appeal. As such,
the injunction sought is not a “traditional” injunction, but instead one grounded in
the authority of the federal courts under the All Writs Act, 28 U.S.C. § 1651(a),
which states, “The Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective jurisdictions
and agreeable to the usages and principles of law.” See Klay v. United
Healthgroup, Inc., 376 F.3d 1092, 1099–1100 (11th Cir. 2004) (explaining that
“[t]he Act does not create any substantive federal jurisdiction” and that the Act “is
a codification of the federal courts’ traditional, inherent power to protect the
Because we already have subject matter jurisdiction over Hill’s appeal of the dismissal 2
of his § 1983 action, this case is entirely different from In re: Clarence Edward Hill, 437 F.3d
1080, 1083 (11th Cir. 2006), where our jurisdiction ceased once we denied Hill’s application
under 28 U.S.C. § 2244(b)(3)(A) to file a successive petition for a writ of habeas corpus.
jurisdiction they already have, derived from some other source”). An injunction
under the All Writs Act “must simply point to some ongoing proceeding, or some
past order or judgment, the integrity of which is being threatened by someone
else’s action or behavior.” Id. (noting “a court’s traditional power to protect its
jurisdiction”). Such is clearly the case here. Hill has noticed his appeal of the
district court’s dismissal of his § 1983 complaint, and we clearly have jurisdiction
over that appeal. Were we to grant a preliminary injunction in order to allow time
to hear Hill’s appeal, we would be doing so to protect our appellate jurisdiction
from the impending act of the State of Florida to execute Hill.2

We find, however, that the equities do not support Hill’s request. Simply
put, Hill was the architect of the very trap from which he now seeks relief. At the
outset, Hill filed his § 1983 complaint four days before his previously scheduled
execution date of January 24, 2006, and just after the Florida Supreme Court
rejected his application for post-conviction relief on, among other grounds, his
challenge to the Florida lethal injection protocol. See Hill v. State, 921 So. 2d
579, 582–83 (Fla. 2006). Hill’s assertion of essentially the same lethal injection
The Florida Supreme Court relied on Sims in rejecting Hill’s lethal injection challenge 3
during post-conviction proceedings. Hill v. State, 921 So. 2d at 582–83.
challenge in the Florida courts reveals that he was aware of the grounds for the
claim much earlier than the date on which he actually filed his § 1983 action in
federal district court. But we need not rely on that inference alone to determine
that Hill unreasonably delayed in filing his federal complaint. The Florida
Supreme Court considered a challenge to the Florida lethal injection protocols on
similar grounds as early as 2000. Sims v. State, 754 So. 2d 657, 666–68 (Fla.
2000). Although it is unclear from the procedural history whether Hill addressed 3
the Sims precedent in his post-conviction proceedings after 2000, the fact remains
that, during the pendency of his various collateral challenges, Florida had
considered the same type of claim upon which Hill now seeks relief. In light of
this context, Hill cannot claim that it was impossible for him to initiate his federal
suit any earlier.

Further, with regard to more recent procedural history, Hill has again
demonstrated his intent to delay proceedings in order to necessitate a stay. After
the district court denied his request for injunctive relief and dismissed his
complaint, Hill moved for reconsideration and, again, for a stay of execution. The
district court denied his motions on September 11, 2006, noting that “Hill’s
emotionally-laden arguments raise no new evidence. . . . [I]t appears that Hill is
engaging in dilatory tactics to delay a death sentence.” Order Denying Motion for
Reconsideration and Motion for Stay at 2–3, Hill v. McDonough, No. 4:06-CV-
032-SPM (N.D. Fla. Sept. 11, 2006). By moving for reconsideration, Hill only
further delayed this court’s receipt of his case on appeal, bringing us within days
of his scheduled execution before he filed the instant motion for a stay and
expedited appeal.

In light of Hill’s actions in this case, which can only be described as
dilatory, we join our sister circuits in declining to allow further litigation of a §
1983 case filed essentially on the eve of execution. See White v. Johnson, 429
F.3d 572, 573–74 (5th Cir. 2005) (holding that even if the condemned inmate’s §
1983 action was cognizable, “‘he is not entitled to the equitable relief he seeks’
due to his dilatory filing” (citations omitted)); Harris v. Johnson, 376 F.3d 414,
417–18 (5th Cir. 2004) (condemned inmate who filed § 1983 action ten weeks
before his scheduled execution “leaves little doubt that the real purpose behind his
claim is to seek a delay of his execution, not merely to effect an alteration of the
manner in which it is carried out”); see generally Hicks v. Taft, 431 F.3d 916 (6th
Cir. 2005); Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004). This holding is
consistent with the Supreme Court’s instruction in its remand of Hill’s case that
“[a] court considering a stay must also apply ‘a strong equitable presumption
against the grant of a stay where a claim could have been brought at such time as
to allow consideration of the merits without requiring entry of a stay.’” Hill v.
McDonough, 547 U.S. at ---, 126 S. Ct. at 2104 (citation omitted).

Accordingly, Hill’s motion for a stay of execution and expedited appeal is