Posted on 05/06/2007 11:41:47 AM PDT by stan_sipple
Gov. Dave Heineman’s deep displeasure with a Nebraska Supreme Court order staying Carey Dean Moore’s execution was clear.
Heineman reacted publicly Thursday, one day after the divided court’s majority put the execution on hold at least until the court rules in another death penalty case.
“This unprecedented judicial activism leaves me speechless,” he said in a news release.
But Creighton University law Professor Dick Shugrue applauded the court’s decision and was dismissive of the judicial activism remark.
“A judicial activist is a judge who decides a case different than the way I wanted it decided,” he said.
Omaha Sen. Ernie Chambers also was critical of Heineman’s characterization.
“It was, in my opinion, an underhanded cheap shot (by someone) who is willing to elevate rigid formalism” above justice, he said.
Michael Fenner, a professor of constitutional law at Creighton, agreed.
“Lately, the term, ‘activist judge’ has come to mean judges with whom I disagree,” he said.
Chambers wrote a letter to the Supreme Court days before it granted the stay, asking it to suspend executions until the legality of the electrocution protocol used by the state Department of Correctional Services could be reviewed.
“The court really had no choice but to do what they did,” he said. “It would be highly unethical and in a sense, criminal, to allow a person to be executed when (the electric chair) might be ruled unconstitutional.”
Fenner said the court did the right thing in issuing the stay.
“In my view, this revocation of the death warrant was really an act of caution,” he said. “If Moore is executed, and the method is found to be unconstitutional, then everybody looks bad.”
Shugrue did say the order was, in some ways, a break from the past.
“Our court, historically, has been quite a conservative court, meaning it only responds to pleas that are before it.”
But in Moore’s case, one of life and death, the court had to act as it did — on its own, without prodding from a party with legal standing, he said.
“They were saying, ‘Let’s settle the question before we go to the next execution,” Shugrue said.
In September, the high court will hear an appeal by death row inmate Raymond Mata, who is arguing that the electric chair violates the Eight Amendment ban on cruel and unusual punishment.
“Were we to conclude that electrocution is no longer constitutional, then we would have undeniably permitted a cruel and unusual punishment only a few months earlier,” Judge John Gerrard wrote for the majority. “The damage to Moore, and to the integrity of the judicial process, would be irreparable.”
The majority issued the order on its own motion — that is, the judges voted to suspend the execution even though Moore had not sought a stay.
In the decision to issue the stay, Gerrard wrote that the court retained jurisdiction in the case even though Moore had filed papers saying he would no longer try to stop the execution.
After Moore filed the papers in March, the high court issued a death warrant and set an execution date of May 8. Moore, 49, was sentenced to death in 1980 for the murders of two Omaha taxi cab drivers.
In the order to stay the execution, Gerrard wrote that the court’s “inherent judicial power” gives it the “authority to do all things that are reasonably necessary for the proper administration of justice.”
That means, he said, the court not only has the authority to stay judgments issued by lower courts, but to put a hold on its own.
“Obviously, that inherent power extends to our own judgments and orders, including the death warrant issued in this case,” Gerrard wrote.
Elsewhere in the order, he said the court had acted prematurely when it issued the death warrant.
The governor was not alone in his disappointment last week.
Supreme Court Chief Justice Mike Heavican, one of the dissenting judges in the 4-3 decision, called the action unprecedented.
“We know of no case in which a court suspended a state’s executions outside of the court’s authority to act in response to a request for relief in an existing case by the condemned person,” Heavican wrote in dissent. “In the absence of any such action, this court has no immediate basis to act and it is unprecedented to do so.”
In Shugrue’s view, there was precedent — somewhat, anyway.
An earlier Nebraska Supreme Court, asked by then-Attorney General Don Stenberg to set an execution date for a condemned prisoner, denied the request because, it said, a federal court was considering the constitutionality of Nebraska’s death penalty law in another inmate’s case, Shugrue said.
“They said it would be improper to set a date when the federal court had not yet decided the question.”
But Fenner agreed, to an extent, with Heavican.
“It is unprecedented in this court and in this situation,” he said.
In other jurisdictions, he said, courts have more often taken on issues on their own motion.
Even so, he said, the legal community continues to debate the limitations on courts’ power.
“If the majority (Wednesday) had said it didn’t have the power to stay the electrocution, then they would have been right,” Fenner said.
“There’s no settled body of law … no clear precedents directing courts to go one way or the other.”
Nebraska Attorney General Jon Bruning joined Heineman in expressing disappointment with the order. He said he believed the prevailing “societal mores” about the electric chair still hold that it is an acceptable form of capital punishment.
“I care less about any suffering of (Moore) in the final moments of his life then I do about closure for the families of his victims,” Bruning said.
The State should tell the black robes to bugger off and execute the guy.
I believe that electrocution is the method that is the least painful.....the reason is instant unconsciousness and over-ride of every brain impulse....there is no chance IMO that one would have even a bit of consciousness or perceived pain once the switch is thrown......despite how some observers choose to describe it if a witness to it.
With hanging, gunshot, and drugs, the brain remains “awake” for at least a few seconds in the case of hanging and gunshot to the heart (until oxygen already present within the brain is used), and much longer than that if using drugs.
How do these justices get their seats on the court? Here in GA they are elected.....and we still have executions as a result.
Later read/pingout.
Lawyers and judges apply for open positions with the a State nominating commission. The governor puts out through back channels who his pick is likely to be. The commission sends to the governor three finalists, and voila appointed judge! Judges face retention votes once in a while but are unlikely to lose. After the last one, the legislature made judicial recall campaigns subject to campaign finance reporting requirements.
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