In an eleventh-hour reprieve, the US Supreme Court put a murderer’s execution on hold this week, a rare moment when a defense was able to slow, if only temporarily, the inexorable wheels of justice.
Hundreds of miles from the grim cell blocks of America’s death row prisons, the lofty halls of the Washington court conceal a small but efficient bureaucracy of execution.
The court’s nine justices are regularly called upon to make last-ditch life or death decisions, supported by a discreet body of clerks in touch with cases ongoing in states around the country.
– The ‘Death Clerk’ –
Danny Bickell is the court’s “emergency application clerk” — informally known as the “death clerk” — and handles all Supreme Court business relating to individual executions.
He operates confidentially and does not give interviews but is known to keep tabs on capital cases and to remain in constant touch with defense teams representing death row inmates.
If a last minute appeal is lodged, it is Bickell who is charged with knowing exactly where the nine justices are at any given time, so that, if necessary, they can order a stay in execution.
This is what happened late Tuesday, when lawyers for Mark Christeson, due to be executed at midnight for the murder of a mother and her two children, got in touch.
Two hours before the condemned man was to breathe his last, the judges ordered his execution be postponed, pending a ruling on whether he had received an appropriate defense.
Death penalty lawyer Rob Owen, a professor of law at Northwestern University, told AFP that defense teams do not try to surprise Bickell or the Court on the eve of an execution.
“His role is to have a complete picture of what’s happening, to find out what litigation is going on in the lower courts,” he said.
“When it arrives at their door step, I want them to already know,” he said.
– The ‘Circuit Justice’ –
Each of the nine Supreme Court judges has a geographic zone, and his or her office examines any last minute death penalty appeal that originates in a state from this “circuit.”
“For each execution, one of the clerks in the relevant circuit was in charge of coordinating the execution,” said Jay Wexler, who served as a clerk to Justice Ruth Bader Ginsburg from 1998 to 1999.
The clerks would deal with huge case files, often at home late at night, then call the relevant judge on a secure line. The judge could then decide whether to mobilize the court.
“I would say 99.9 percent of the time the circuit justice is going to refer the application to the full court, and all nine justices are going to act,” Bickell told lawyers in 2012, according to the New York Times.
William Jay, who clerked for Justice Antonin Scalia on the circuit that includes Texas, the state with the most executions, said the justices usually act quickly and as a body.
“Often the inmate is in the execution chamber, and someone is waiting for a phone call, usually the death clerk to the lawyer of the state,” he said.
“The state has the power to proceed if it hasn’t been ordered to stop,” he explained, adding that in only very few cases do the judges order a stay of execution.
– Last minute decisions –
“You knew when the execution was scheduled,” said Wexler, and as it got closer, “you knew they would increase the frequency of litigations.”
Jay said these last minute applications could backfire on a defendant: “After three denied petitions, the State might understandably assume it is a tactic to delay.”
But defense lawyer Owen said: “I will plead guilty to the charge that I do everything to save my client’s life, that’s my duty.
“Some people think that’s tactical, but if you’re filing at the last minute, you are gambling, you have almost no chance to win.
“It is not to our advantage to surprise the Supreme Court at the eve of an execution.”
– Low success rate –
According to the Death Penalty Information Center, a non-profit watchdog, the court might approve three applications for stays each year, out of around a thousand presented.
A very serious complaint, such as of police corruption, defense incompetence or doubts about the legality of the cocktail of drugs in a lethal injection, can delay an execution — but not often.
“It’s a very lonely, very long and difficult night,” admitted Wexler.
Some judges are more likely to grant a stay than others. Liberal justice Elena Kagan always calls for a delay, while Scalia has done so in only four percent of cases, according to Bickell in the Times.
Five of nine judges must vote for a stay for it to pass.
“Most of the time it’s bad news,” said defense attorney Brian Kammer, whose client Troy Davis was executed on September 21, 2011 in Georgia.
“Giving my clients that news is very difficult, heartbreaking.”