- The Washington Times - Monday, May 24, 2004

ASSOCIATED PRESS

The Supreme Court ruled unanimously yesterday that a convicted Alabama killer can pursue an appeal claiming lethal injection is cruel and unusual punishment in his case.

Justices said that lower courts were wrong to block appeals by death row inmate David Larry Nelson, who was less than three hours from execution last fall when the Supreme Court gave him a temporary reprieve.

Nelson’s case had given justices a stark look at how inmates are put to death. Nelson maintained that his veins — damaged by drug use — make it impossible to insert an intravenous line without cutting deep into flesh and muscle.

The court was using Nelson’s case to decide a technical question of whether last-minute appeals from death row inmates should be allowed in federal courts.

Justice Sandra Day O’Connor, writing for the court, said that Nelson should be allowed to argue that his punishment would be unconstitutionally cruel unless special precautions were taken.

Justices had been told in filings by physicians that if done improperly, the procedure could cause Nelson to seriously hemorrhage and suffer heart problems before the deadly drugs kill him.

Alabama attorneys maintained it was too late for Nelson to try to stop his execution, arguing that his case was a prime example of a sluggish justice system and the need for limits on appeals. He has been on death row more than 20 years.

Justice O’Connor said the court was not going to “open the floodgates to all manner of method-of-execution challenges,” as Alabama feared. Nelson’s appeal had prompted legal challenges to the types of drug cocktails used in lethal injections in other states.

Justices have clashed 5-4 in a string of emergency appeals this year from inmates seeking temporary reprieves on grounds that their own lethal injections would be unconstitutional. Injection is available to condemned inmates in 37 states.

Alabama lawyers had said that Nelson should not have been allowed to challenge a procedural part of the execution. Justice O’Connor disagreed.

“Merely labeling something as part of an execution procedure is insufficient to insulate it from [legal] attack,” she wrote.

Also yesterday, the Supreme Court agreed to decide whether a convicted California killer’s religious conversion should have been considered by a jury that sentenced him to death.

A sharply divided federal appeals court set aside William Payton’s death sentence in the 1980 rape and stabbing death of a woman, a decision that California officials said “jeopardizes the validity of numerous death penalty cases in California.”

Jurors were told to disregard the defense’s argument that Payton’s conversion made him a model inmate who could help others through a prison ministry. Justices will decide whether the San Francisco-based 9th U.S. Circuit Court of Appeals set a wrong standard for jury instructions.

In a third case, the Supreme Court turned down an appeal from a Georgia inmate whose lawyers had urged the court to clarify its 2002 ruling banning the execution of mentally retarded people.

The court gave no ironclad definition of retardation, nor legal standards for proving it, and the justices could have used the case of Alphonso Stripling to settle how much proof of retardation death row inmates must show to avoid the death penalty.

Stripling was sent to death row for the 1988 killing of two co-workers at a fast-food restaurant. Experts hired by defense lawyers and the state have differed over whether he is retarded.

In other action, the court refused to consider the appeal of a retired Army Reserve colonel convicted of spying for the Soviet Union. George Trofimoff told justices that his only crime was pretending to be a spy.

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