By Tony Mauro, From The National Law Journal

Missouri death row appeal cited Breyer’s dissent in lethal-injection case.

The U.S. Supreme Court on Tuesday night turned away a full-scale challenge to capital punishment in the case of a convicted murderer in Missouri set for execution at 6 p.m.

Without comment or dissent, the court rejected multiple appeals from David Zink’s lawyers. Missouri Gov. Jay Nixon also denied clemency for Zink, who was found guilty in the brutal 2001 murder of a 19-year-old woman.

Lawyers for Zink had earlier invoked U.S. Supreme Court Justice Stephen Breyer’s recent death penalty dissent in seeking a stay. Some commentators saw Zink’s case as an opportunity for the full court to reexamine the constitutionality of the death penalty, as Breyer urged in the dissent. But the court’s action late Tuesday dashed those hopes.

Zink’s execution by lethal injection was the first since the high court issued Glossip v. Gross on June 29. In Glossip, a 5-4 majority upheld the use of a controversial drug in lethal injections. Breyer, joined by Justice Ruth Bader Ginsburg, wrote a lengthy dissent questioning whether capital punishment, as it is now carried out, is constitutional.

Breyer wrote that a combination of factors including long delay, arbitrariness, and the likely innocence of some who have been executed led him to conclude that it is “highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.”

Zink’s counsel of record Elizabeth Carlyle of Kansas City Missouri wrote in her petition, “Two weeks ago, Justice Breyer, joined by Justice Ginsburg … deconstructed present-day capital jurisprudence and determined that it is highly likely that the country, the public, state legislatures, and the courts combined with such force to lead them to conclude that the death penalty likely violated the 8th Amendment and thus is inconsistent with today’s ‘standards of decency.’”

Carlyle also wrote:

“The death penalty has become a source of error and bias. It is time to end ‘tinkering with the machinery of death’ and declare it unconstitutional once and for all.”

The petition also cited flaws in Zink’s trial that kept the judge and jury from learning about Zink’s “organic brain damage.” The Missouri Supreme Court declined to intervene, as did the U.S. Court of Appeals for the Eighth Circuit.

Richard Sindel of Sindel, Sindel & Noble in Clayton, Missouri, another of Zink’s lawyers, said in an interview Tuesday that the legal team decided to cite Breyer’s dissent because it reflected his and Ginsburg’s long experience in dealing with the death penalty. “They’ve been at it a long while,” Sindel said. Unlike the late justices Thurgood Marshall and William Brennan Jr. who dissented from the death penalty “as a matter of course,” Sindel said Breyer’s dissent was “a different animal,” full of detailed analysis and detail on why capital punishment is not working.

Late Tuesday morning, Missouri Attorney General Chris Koster filed a brief with the Supreme Court urging it to reject Zink’s appeal as “meritless” and procedurally flawed. Addressing the Glossip dissent, the brief stated, “A two-justice dissent does not establish a new rule of constitutional law made retroactive to cases on collateral review.”

“This latest pleading is really an attempt to use the two-justice dissent in Glossip as a means of delaying Zink’s lawful execution,” Missouri’s lawyers wrote. “If Zink really believed that Glossip would impact the outcome of his case, he would have filed this motion two weeks ago when Glossip was decided.”

On Monday, a federal judge considering Zink’s appeal also made short shrift of the Breyer dissent. U.S. District Judge Beth Phillips in the Western District of Missouri wrote: “The court is not inclined to rely on the dissenting opinion in Glossip to declare the death penalty unconstitutional when the majority opinion clearly states that the death penalty is constitutional.”

IMAGES:

Stephen Breyer. Photo: Diego M. Radzinschi/NLJ

David Zink

For more on this story go to: http://www.nationallawjournal.com/id=1202732062420/Supreme-Court-Rejects-Plea-to-Strike-Down-Death-Penalty#ixzz3fyAtvoeH