motion for stay - 8th circuit - epc, dpc, and hasty executions (05035641)

8/12/2019 Motion for Stay - 8th Circuit - EPC, DPC, And Hasty Executions (05035641)

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IN THE UNITED STATES COURT OF APPEALSFOR THE EIGHTH CIRCUIT

NO. 14-1388

DAVID ZINK, et al., ))

MICHAEL ANTHONY TAYLOR, ))

Plaintiffs/Appellants, ) D.C. No. 12-4209-BP)

v. ) THIS IS A CAPITAL CASE)

GEORGE LOMBARDI, et al., )) Execution scheduled for

Defendants/Appellees ) 12:01 a.m., February 26, 2014

APPELLANT MICHAEL TAYLORS MOTION FOR STAY OFEXECUTION BASED ON STATES VIOLATIONS OF

EQUAL PROTECTION AND DUE PROCESS

This motion concerns only the district courts denial of Mr. Taylors motion

appearing at Docket Entry 363. Mr. Taylor has also appealed the district courts

denial of two other motions, appearing at Docket Entries 343 and 353. His appeal as

to those motions will follow later today.

The Missouri Department of Corrections has executed three prisoners in three

months despite stay proceedings at all three levels of the federal judiciary. Aside from

undermining the rule of law, the defendants conduct violates their own written

procedures. Those procedures prohibit defendants from even removing the prisoner

from his holding cell when legal activity is in process to prevent the execution. See

Exhibit A (procedure at 11:15 p.m.). Defendants have serially violated a core aspect

of their written protocol, leaving no assurance that the various plaintiffs in this case

will be executed in a consistent and established manner, or that defendants consider

Appellate Case: 14-1388 Page: 1 Date Filed: 02/24/2014 Entry ID: 4126514


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themselves bound by their own procedures at all. See Cooey v. Kasich, 801 F. Supp. 2d

623, 652-59 (S.D. Ohio 2011) (deviation from core aspects of written protocol

violated equal protection); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044,

1054-59 (S.D. Ohio 2012), affd, 671 F.3d 601 (6th Cir. 2012) (same). Mr. Taylor is

entitled to a stay of execution because the defendants conduct offends the due

process and equal protection guarantees of the Fourteenth Amendment.

Moreover, the district courts order denying a stay is plainly and distinctly

erroneous in numerous respects:

!It misapprehends the merits of Mr. Taylors claims, requiring him to show a

full-fledged violation of the Eighth Amendment in order to show that the state

violates equal protection and due process by deviating from written procedures that

protect Mr. Taylors Eighth Amendment rights. See Ohio Execution Protocol Litig., 840 F.

Supp. 2d at 1054 (Eighth Amendment violation not required; stay of execution

granted); Ohio Execution Protocol Litig., 671 F.3d 601, 602 (6th Cir. 2012) (upholding

stay of execution because state is obligated to abide by its own protocol).

!It reasons that the allowance of judicial review is not a core aspect of the

States execution protocol, even though the state adopted a written protocol at the

district courts insistence in earlier litigation, and did so for the purpose of allowing

pre-execution judicial review. Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL

1779035 (Doc. No. 195) at 5 & 7-9 (Order of June 26, 2006); Ringo v. Lombardi, 706 F.

Supp. 2d 952, 962 (W.D. Mo. 2010) ([T]he Eighth Amendment requires protocols



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several days earlier. Setting aside the fact (a) that the underlying motion was filed

earlier than parallel motions prior to the last three executions, (b) that the jurists

whose authority has been flouted by the State over the last three executions have

blamed the States conduct for carrying out those executions during stay remedies

and not the prisoners conduct for filing them, (c) that the State did not even execute

Herbert Smulls until five days after the Missouri Supreme Court scheduled Mr.

Taylors execution date, and (d) that it is impossible for Mr. Taylor to have brought

his claim at a time that it could be resolved without a stay of execution, the district

courts premise does not remotely warrant its conclusion. Litigating under a death

warrant is the most harrowing of lawyerly activities and circumstances, and it is

precisely because of his other painstaking remedies that Mr. Taylor was unable to file

the underlying motion before he did. Mr. Taylor is not dilatory for preparing and

filing some stay remedies earlier than others; all days consist of but 24 hours.

Mr. Taylor is entitled to a stay of execution, and the district court plainly erred

by denying one.



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TABLE OF CONTENTS

I. Factual background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The Department of Corrections executed plaintiff Joseph Franklinon November 20, 2013, even though viable stay proceedings werepending in the district court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. The Department of Corrections executed plaintiff Allen Nicklassonon December 11, 2013, even though viable stay proceedings werepending in the Eighth Circuit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. The Department of Corrections executed plaintiff Herbert Smullson January 29, 2014, even though viable stay proceedings were

pending in the Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

D. Viable claims remained pending at the time of the last threeexecutions because the courts had not resolved them, and notbecause of any deliberate strategy by plaintiffs counsel to ensurethe pendency of stay motions throughout the period of an execution

warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

E. The Department of Corrections written procedures prohibit anexecution during the pendency of legal proceedings to stay it. . . . . . . 11

II. Defendants refusal to follow their own written execution proceduresviolates the Fourteenth Amendments guaranty of equal protection becauseit leaves the defendants free to vary their method in core respects fromexecution to execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Equal protection requires reliable compliance with core aspectsof the States written execution policies. . . . . . . . . . . . . . . . . . . . . . . . . 14

B. The allowance of judicial review is a core aspect of Missourisexecution procedure, as evidenced by judicial outrage at the Statespractices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. The district courts earlier order denying a stay to Allen Nicklassonmaterially strengthens Mr. Taylors entitlement to stay.. . . . . . . . . . . . 20



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III. Defendants conduct over the past three executions violates a state-createdprotection respecting the punishment of persons convicted of crime, andfor this reason violates the Due Process Clause of the Fourteenth

Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

IV. The district courts order misapprehends the legal basis of Mr. Taylorsclaims and misapplies the relevant considerations for granting a stay ofexecution.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

A. The allowance of judicial review is a core aspect of the stateswritten execution procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

B. Mr. Taylor need not show that Missouris execution method violatesthe Eighth Amendment in order show that the defendants are

violating due process and equal protection by not following theirestablished and written procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

C. The States Chronological Sequence of Execution unambiguouslyforbids the execution process from commencing when stayremedies are pending.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

D. Mr. Taylor did not delay, unduly or otherwise, the preparation andfiling of the underlying motion for stay. . . . . . . . . . . . . . . . . . . . . . . . . 28

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31



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I. Factual background

A. The Department of Corrections executed plaintiff Joseph Franklinon November 20, 2013, even though viable stay proceedings were

pending in the district court.

On November 18, 2013, Mr. Franklin moved the district court for an order

staying his execution. The motion attached documents showing recent changes that

the defendants had not disclosed by supplementation of their discovery responses. It

also included a supplemental declaration from Dr. Larry D. Sasich showing the flaws

and unanswered questions in such late-disclosed or nearly undisclosed document

from the defendants. ECF Doc. 157. At 4:19 p.m. on November 19, 2013, the court

stayed Mr. Franklins execution. ECF Doc. 163. Mr. Franklin had sought the stay on

four grounds; the court granted relief on one groundthe violation of the Eighth

Amendment to the United States Constitutionand expresslyrefrained from

reaching the remaining grounds:

Because the Court finds that the stay of execution must be granted on thegrounds that Plaintiffs have shown a substantial likelihood of success onthe merits of their Eighth Amendment claim, the Court declines to discussPlaintiffs other arguments on the merits at this time.

Id.at 12.

Defendants appealed the courts order to the Eighth Circuit. At 12:09 a.m. on

November 20, 2013, the court vacated the stay. ECF Doc. 366-1. The Eighth Circuit

thereafter denied Mr. Franklins petitions for rehearing and for rehearing en banc,

over three dissenting votes, with three additional judges not participating in the



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decision. ECF Doc. 366-2. At 3:40 a.m. on November 20, 2013, counsel for Mr.

Franklin then filed an application for stay in the U.S. Supreme Court. ECF Doc. 366-

3.

At approximately 5:01 a.m. on November 20, 2013, while the United States

Supreme Court proceedings were still pending, counsel for Mr. Franklin filed a

renewed motion for stay on the basis of the grounds the district court had reserved

ruling thirteen hours earlierexplaining that these grounds did not require the

heightened evidence that the Eighth Circuit held to be missing from Mr. Franklins

Eighth Amendment claim. ECF Docs. 167, 366-4. Opposing counsel received notice

of this filing through the district courts electronic filing system at that time. ECF

Doc. 366-4. Joseph W. Luby, counsel for Mr. Franklin, called the emergency number

for the clerk of the district court at approximately 5:10 a.m. to insure that the court

was alerted to the filing. At 5:18 a.m., counsel for Mr. Franklin and the Zink

defendants received notice, via email, that the United States Supreme Court had

denied the application for stay. ECF Doc. 366-5.

At 5:24 a.m., November 20, 2013, Mr. Luby sent an email to defense counsel

Susan D. Boresi, Michael J. Spillane, and Stephen D. Hawke, reminding them of the

filing and stating his expectation that no execution would occur while it was pending:

Dear Counsel:

As you know, we have filed a renewed motion for stay of execution, askingthe Court to consider the grounds that it declined to consider after findingthat Mr. Franklin had sufficiently proven a viable Eighth Amendment



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claim. I have contacted the emergency number [for] the U.S. DistrictCourt, and the clerk with whom I spoke is contacting Judge Laughrey toalert her of our motion. In the meantime, I expect you and your clients torefrain from executing Mr. Franklin while this matter remains pending.

ECF Doc. 366-6. Mr. Luby never received any electronic notice that might have

indicated that his email to defense counsel was not successfully delivered. And he has

never received a response to this email. Despite the electronic notice of filing from

the district court and the foregoing e-mail from appointed counsel, the defendants

injected Mr. Franklin with some substance at 6:07 a.m. and pronounced him dead at

6:17 a.m. ECF Doc. 366-7. At that time, the motion that the plaintiffs had filed in the

district court (ECF Doc. 167) remained pending. On November 20, 2013, after the

defendants had executed Mr. Franklin, the district court denied his motion for stay as

moot. ECF Doc. 170.

B. The Department of Corrections executed plaintiff Allen

Nicklasson on December 11, 2013, even though viable stayproceedings were pending in the Eighth Circuit.

On December 3, 2013, counsel filed a motion for a stay of Allen Nicklassons

execution with the district court, citing some of the same facts set out above. ECF

Docs. 184 at 4, 188 at 8-10. On Monday, December 9, 2013, the Eighth Circuit

granted a stay to Mr. Nicklasson on the basis of a claim arising in light ofMartinez v.

Ryan, 132 S. Ct. 1309 (2012). See Nicklasson v. Roper, Eighth Circuit Case No. 13-3091.

The states attorneys sought rehearing en banc, which the Eighth Circuit denied on

the evening of December 10, 2013, by vote of 8-2-1. Respondents counsel filed an



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application to vacate the stay in the Supreme Court. The Supreme Court vacated the

Martinez-based stay at approximately 10:00 p.m. on December 11, 2013, by a vote of

five to four.

In the meantime, counsel for Nicklasson had already asserted his numerous

bases for the district court to stay his execution on account of the Zinklitigation. See

ECF Doc. 184 (filed Dec. 3, 2013). The district court declined to rule on that motion

because the Eighth Circuits stay remained in effect. ECF Doc. 194. Counsel for Mr.

Nicklasson pressed the district court for a ruling in the event that the Supreme Court

might vacate the Eighth Circuits stay. At 10:50 a.m. on December 11, counsel filed

an emergency conditional motion for stay, urging the district court to rule the

pending motion and explaining that opposing counsel refused to ensure that their

clients would refrain from executing Mr. Nicklasson if a motion for stay remained

pending in the event of an order from the Supreme Court vacating theMartinezstay.

SeeECF Doc. 195. Eighteen minutes later, the district court denied the motion. ECF

Doc. 196. At 3:46 p.m., counsel filed a motion for stay in the Eighth Circuits Appeal

No. 13-3664. At 3:55 p.m., counsel filed an emergency motion for conditional stay in

the same appeal.

Unfortunately for Mr. Nicklasson, the Eighth Circuit panel to which the

motions were directed did not resolve them until after the Supreme Court issued its

10:00 p.m. order vacating theMartinezstay. At 10:11 p.m., the Eighth Circuit panel

denied the stays Mr. Nicklasson had sought on appeal. ECF Doc. 366-8. At 10:31



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p.m., counsel for Mr. Nicklasson moved the Eighth Circuit en banc for rehearing as

well as for a stay of execution. ECF Doc. 366-9.

According to MissouriNet: Attorney General Chris Koster informed the

Department of Corrections at 10:43 p.m. that there were no legal impediments to

the execution. ECF Doc. 366-10 (article from MISSOURINET). The next minute,

the defendants injected Mr. Nicklasson with something, and at 10:52, they

pronounced him dead. ECF Doc. 366-11(article from The Guardian).

C. The Department of Corrections executed plaintiff Herbert Smullson January 29, 2014, even though viable stay proceedings were

pending in the Supreme Court.

In the case of Herbert Smulls, there were three actions in which counsel

sought and, in some instances, received stays of execution. One concerned the

ongoing grievance with the Eighth Circuits grant of an extraordinary writ to allow

the respondents to avoid discovery in this case. A second raised Due Process Clause

and First Amendment claims arising from the Zinklitigation. A third involved a claim

arising under Batson v. Kentucky, 476 U.S. 79 (1986), which counsel asserted in a

motion to recall the mandate before the Missouri Supreme Court, and as to which

counsel thereafter petitioned the United States Supreme Court for a writ of certiorari.

On January 28, 2014, the United States Supreme Court entered a stay pending

further order of the Court in Mr. Smullss Batsoncase. ECF Doc. 364-1. Later that

day, a panel of the Eighth Circuit entered a stay pending the U.S. Supreme Courts

determination of the petition for writ of certiorari in Zink v. Lombardi, concerning the



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Eighth Circuits grant of mandamus relief in favor of the Zinkdefendants. ECF Doc.

364-2. The Eighth Circuit did not rule at that time on two other grounds (due process

and First Amendment) presented in support of the request for stay. Id.Those

grounds remained pending. The Eighth Circuit did not address them until January 29.

At 4:34 p.m. on January 29, counsel for Mr. Smulls received notification that

the Supreme Court had vacated its prior stay in Mr. Smullss Batsoncase, and had

denied his application for stay (but not the petition for certiorari) in Zink. ECF Doc.

364-3. The order contained no ruling on the certiorari petition in Zink. At 6:28 p.m.,

the Zinkdefendants filed an application to vacate the Eighth Circuits grant of a stay

of execution based on the pending Zinkpetition in the Supreme Court challenging

the grant mandamus relief. Between 8:30 and 8:50 p.m. counsel for Mr. Smulls filed a

motion for conditional stay in the Eighth Circuit and a renewed motion for stay,

seeking the courts rulings on the unexhausted Due Process Clause and First

Amendment claims that Mr. Smulls had presented in the January 28 application for

stay. ECF Docs. 365-1.

At 9:00 p.m., in preparation for the contingency that the U.S. Supreme Court

might vacate the Eighth Circuits stay on the Zinkmandamus grounds and that the

Eighth Circuit might also deny his application for a stay on the separate Due Process

Clause and First Amendment grounds, counsel for Mr. Smulls lodged a petition for

writ of certiorari and application for stay based on Mr. Smullss due process and First

Amendment claims. At that time, the petition and application were lodged with the



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application and petition for writ of certiorari based on these claims, those remedies

were now ripe for ruling. At 10:07 p.m. counsel for Mr. Smulls received the written

order from the Eighth Circuit of which the clerk had orally notified them eight

minutes earlier. This transmission contained Judge Byes three-page dissenting

opinion on the due process claim. Counsel for Mr. Smulls then submitted that

opinion to the Supreme Court in further support of his application for stay and

petition for writ of certiorari. ECF Doc. 364-4.

At 10:11 p.m., Mr. Smullss Due Process and First Amendment petition and

application were pending in the Supreme Courtsupplemented by Judge Byes

vigorous dissenting opinion. At that very time, the defendants began the execution,

starting the administration of a lethal drug. Counsel for Mr. Smulls did not find out

the timing until later, through press reports. While they proceeded to kill Mr. Smulls,

the defendants kept his counsel completely in the dark as they were awaiting the

Supreme Courts ruling. At 10:20 p.m. Mr. Smulls was pronounced dead. Not until

10:24 p.m. did the U.S. Supreme Court deny Mr. Smullss petition for certiorari and

application for stay. ECF Doc. 364-5.

Throughout the evening, counsel for Mr. Smulls, Cheryl A. Pilate, had sent a

series of e-mails to defense counsel, apprising them of the status of filings on behalf

of Mr. Smulls and the courts decisions. ECF Doc. 364-6. At no point, until 10:24

p.m., was Mr. Smulls without either a stay or a pending application for stay.



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D. Viable claims remained pending at the time of the last threeexecutions because the courts had not resolved them, and notbecause of any deliberate strategy by plaintiffs counsel toensure the pendency of stay motions throughout the period of anexecution warrant.

Seeking to justify the Department of Corrections conduct, opposing counsel

recently testified before a Missouri legislative committee that the prisoners attorneys

pursue a very deliberate strategy to ensure there is always a stay motion pending

during the course of a death warrant, which is a de factorepeal of the death penalty.

Counsel suggested that stay proceedings were pending during the last three

executions only because the still-pending motions were sprung on the courts and the

State at the eleventh hour.

But the circumstances of each case disprove counsels characterization of

them. In the Franklin case, counsel filed a renewed motion for stay in the district

court after the court left unresolved promising claims that do not require the same

evidence that Mr. Franklin was held to have lacked. It was no fault of Mr. Franklins

attorneysand certainly not their deliberate strategythat Judge Laughrey would

grant a stay on Mr. Franklins most demanding claim while leaving the other grounds

unresolved. And it was entirely reasonable for counsel to seek a ruling on those

unresolved grounds.

Likewise, in the Nicklasson case, the Eighth Circuit panel did not rule on the

Zink-based motion for stay until 10:11 p.m. on the date of the warrant, or some ten

minutes after the Supreme Court vacated the Eighth Circuits stay on Mr.



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NicklassonsMartinezlitigation that challenged his underlying conviction and

sentence. Counsel for Mr. Nicklasson simply took the next logical step after the

Eighth Circuits adverse ruling: they immediately moved the full Eighth Circuit for a

stay of execution and rehearing en banc, advancing the same grounds that had been

filed in the district court eight days earlier. That motion was filed at 10:31 p.m., but

the State began executing Mr. Nicklasson at about 10:43 p.m., after the Attorney

General informed the DOC that there were no legal impediments to the execution.

Neither did counsel for Mr. Smulls spring a last-minute surprise on the State or

the courts. Counsel were simply seeking a ruling on remedies that had been pending

before the Eighth Circuit for more than 24 hours, and which had been presented to

the district court days earlier. The conditional and renewed motion for stay asked the

Eighth Circuit for relief on two grounds that remained unresolved. The State was well

aware of these grounds, and indeed, it had earlier filed (at 2:42 p.m. on January 29) a

motion asking the Eighth Circuit to expedite its ruling on the two unresolved claims.

That ruling finally came at 10:07 p.m., with the Eighth Circuit denying a stay despite

Judge Byes vigorous three-page dissent in support of the due process claim. The

underlying stay theories had already been lodged with the Supreme Court in

anticipation of the Eighth Circuits ruling, and the issues became ripe for the Supreme

Court as soon as the Eighth Circuit had resolved them at 10:07 p.m. The State

nevertheless began injecting Mr. Smulls with a lethal chemical at 10:11 p.m., and

pronounced him dead at 10:20 p.m. Four minutes later, the Supreme Court sent word



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Defendants insist that the written procedures allow the Director to authorize

an execution when stay proceedings are pending. See ECF Doc. 354, at 22-23. But

that argument is implausible, because the rules very language provide for the

Director to advise the Warden to escort the prisoner out of the holding cell only

when no stay is in place and no legal activity is in process to prevent the

execution. (emphases added). For that matter, the district court has already rejected

the defendants reading of the procedures. In the course of denying a stay to Allen

Nicklasson, the district court agreed that the defendants had violated their own

procedures by prematurely executing Joseph Franklin; the district court simply

believed that the defendants were unlikely to violate their own rules again:

Because Defendants have violated a portion of their protocol on oneoccasion does not mean Defendants are likely to do it again. Mr.Nicklasson has provided nothing more than speculation that at some pointin the future, a condemned prisoner may be executed in a manner different

than another prisoner. Without more, proof of Defendants one timeviolation is not sufficient to create a significant likelihood of success on hisequal protection claim.

ECF Doc. 196 at 10.

Defendants also argue that no prisoner could ever be executed if they were

obligated to follow the protocol as written, because counsel could simply file stay

application after stay application until the twenty-four hours of the execution warrant

expired. ECF Doc. 354 at 23. That assertion ignores the merits of the filings made

on behalf of Messrs. Franklin, Nicklasson, and Smulls, as well as the requirement that

any federal filing must be made in good faith and not to cause unnecessary delay. See



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Fed. R. Civ. P. 11(b)(1). Defendants have never suggested that any of the grounds

were frivolous. Indeed, Franklins grounds involved claims that were easier to satisfy

than the Eighth Amendment claim on which the district court granted a stay, and

Nicklassons and Smulls claims were both supported by the dissenting views of

multiple Eighth Circuit judges. If the defendants had reason to believe that bad-faith

pleadings were being filed, they ought to have sought relief under Rule 11 rather than

evading the courts power and duty to say what the law is. Defendants instead

divested the reviewing courts of jurisdiction by deciding for themselves that the

prisoners claims were unavailing.

II. Defendants refusal to follow their own written execution proceduresviolates the Fourteenth Amendments guaranty of equal protectionbecause it leaves the defendants free to vary their method in corerespects from execution to execution.

Defendants do not consider themselves bound by their own execution

protocol. Therefore, Plaintiffs lack any assurance that otherwise similarly situated will

be executed through established and consistent procedures, or that the States written

policies will be followed at all. The States willingness to engage in core deviations

from its own execution protocol burdens each prisoners right to equal protection

and to be free of cruel and unusual punishment, but without serving any legitimate

governmental interest. Cooey v. Kasich, 801 F. Supp. 2d 623, 652-59 (S.D. Ohio 2011)

(deviation from core aspects of written protocol violated equal protection); In re

Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044, 1054-59 (S.D. Ohio 2012) (same),



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affd, 671 F.3d 601 (6th Cir. 2012). These defects burden each prisoners fundamental

rights.See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (due process recognizes liberty

interest in states compliance with state law); Ringo v. Lombardi, 706 F. Supp. 2d 952,

962 (W.D. Mo. 2010) (Eighth Amendment requires execution protocols that include

adequate safeguards against unnecessary pain); Bush v. Gore, 531 U.S. 98, 109 (2000)

(criticizing court-ordered statewide remedy that failed to ensure uniformity of voting

rights from county to county; statewide remedy requires at least some assurance that

the rudimentary requirements of equal treatment and fundamental fairness are

satisfied).

A. Equal protection requires reliable compliance with core aspectsof the States written execution policies.

The purpose of the equal protection clause is to secure every person within

the States jurisdiction against intentional and arbitrary differential treatment,

whether occasioned by express terms of a statute or by its improper execution

through duly constituted agents. Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000); Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923). The Equal

Protection Clause embodies the general rule that States must treat like cases alike but

may treat unlike cases accordingly. Vacco v. Quill, 521 U.S. 793, 799 (1997). The

states cannot make distinctions which either burden a fundamental right (with or

without violating that right), target a suspect class, or intentionally treat one person

differently from others similarly situated without any rational basis for the difference.



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Id.; Village of Willowbrook, 528 U.S. at 564. When an equal protection claim implicates

a burden on the fundamental rights of a group of persons, the state action involved is

subjected to strict judicial scrutiny.Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312

(1976); Gavin v. Branstad, 122 F.3d 1081, 1089 (8th Cir. 1997). State action fails such

scrutiny unless it is necessary to achieve a compelling governmental interest and is

narrowly tailored to do so. See Citizens United v. FEC, 558 U.S. 310, 340 (2010);

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

Equal protection is implicated by a states policy and practice of deviating from

core aspects of its written and established execution policies, which exist to protect

the prisoners interest in avoiding an execution that constitutes cruel and unusual

punishment. See Baze v. Rees, 553 U.S. 35, 56 (2008) (concluding that, on the record

evidence, petitioners had not demonstrated substantial risks of serious pain [i]n light

of these safeguards that Kentucky follows); Ringo, 706 F. Supp. 2d at 962 (noting

that the Eighth Amendment requires protocols that include adequate safeguards

against unnecessary pain). What this means is that any core deviation from the

protocol is permissible only if it is narrowly tailored to a compelling governmental

interest. In re Ohio Execution Protocol Litig., 840 F. Supp. 2d at 1054. Defendants

cannot make such a showing, because executions without observance of prescribed

safeguards serve no legitimate interest: Plaintiff has demonstrated that the only

rationale for core deviations that eliminate safeguards and introduce greater

uncertainty into the execution process is to simply complete the executions at all or



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nearly all costs. Cooey, 801 F. Supp. 2d at 653.

Mr. Taylor and each other plaintiff will also prevail under a class of one

theory of equal protection, under which a state is forbidden from treating one

individual differently from other similarly situated individuals unless the state has a

rational basis for doing so. Village of Willowbrook, 528 U.S. at 564. The class of one

theory presupposes that like individuals should be treated alike, and that to treat

them differently is to classify them in a way that must survive at least rationality

review.Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 605 (2008). To measure such

disparate treatment, a claim generally requires the existence of a clear standard

against which departures, even for a single plaintiff, could be readily assessed. Id.at

602. Under this theory, Mr. Taylor can show that Defendants non-compliance with

their written policies arbitrarily or intentionally treats each condemned inmate

differently and that such disparate treatment serves no legitimate state interest. See In

re Ohio Execution Protocol Litig., 840 F. Supp. 2d at 1054-59; Cooey, 801 F. Supp. 2d at

652-59.

From all appearances, the defendants actions in executing Messrs. Franklin,

Nicklasson, and Smulls, and deviating from their written execution policies, were

intentional, and were not based on any individualized concerns about the condemned

inmate, but rather on interests of administrative convenience. But that interest does

not justify disparate treatment of similarly situated individuals. See Rinaldi v. Yeager,

384 U.S. 305, 310 (1966); Frazier v. Manson, 703 F.2d 30, 35 (2d Cir. 1983). When the



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defendants actions are unrelated to the achievement of any combination of legitimate

purposes, a court can only conclude that those actions are irrational. Kimel v. Florida

Bd. of Regents, 528 U.S. 62, 84 (2000); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d

at 1054.

B. The allowance of judicial review is a core aspect of Missourisexecution procedure, as evidenced by judicial outrage at theStates practices.

Defendants dispute that they have a core principle of refraining from

executions when judicial remedies are pending. ECF Doc. 354 at 22. But the fact that

defendants do not like a provision of their own protocol, and wish it did not mean

what it says, does not mean that it is not a core principle. As an abstract matter, of

course, the availability of judicial review is key to ensuring that executions are

humane.See Ringo v. Lombardi, 706 F. Supp. 2d 952, 962 (W.D. Mo. 2010) ([T]he

Eighth Amendment requires protocols that include adequate safeguards against

unnecessary pain, and superior courts have indicated that the involvement of

medical professionals and rules for administration enhances such safeguards.).

Allowance of court review is indeed a core principleof the states policy. Since these

particular provisions affect both the actions of the state in the execution process and

the prisoners access to the courts, its importance is clear. Counsel for Messrs.

Franklin, Nicklasson, and Smulls acted in reliance on opposing counsels good faith

when they notified them of pending stay remedies and the courts efforts to resolve

them. Counsel for defendants simply ignored these entreaties and the motions they



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described. Mr. Taylor should not suffer the same fate.

Lest there be any doubt on the importance of judicial review, the courts have

made known their displeasure with the States conduct. On December 28, 2013,

Judge Laughrey disclosed to two of plaintiffs counsel the identities of defendants

compounding pharmacy and laboratory. ECF Doc. 242. Judge Laughrey later vacated

that order, recognizing that she issued it without knowing that the Eight Circuit had

stayed her discovery rulings the previous evening. ECF Doc. 244. But the facts that

were otherwise described by Judge Laughrey remain true. On the one hand, defense

counsel twice refused to comply with the courts discovery orders when their

motions to stay those orders were pending. On the other, defendants had by then

carried out two executions while the prisoners motions for stay were pending. In

effect, defendants had appointed themselves as their own judges:

Defendants seem to think that they are able to decide for themselves whenit is appropriate to comply with an order of a court and when it is not

when they can proceed in the face of pending litigation and when theyneed not be concerned about pending litigation.

ECF Doc. 242 at 2.

Eighth Circuit Judge Kermit Bye was even more outspoken in his criticism. He

was alarmed that defendants executed Allen Nicklasson before the Eighth Circuit

could determine Mr. Nicklassons motion for stay and petition for rehearing en banc:

At approximately 10:52 p.m. on December 11, 2013, Missouri executedAllen Nicklasson before this court had completed its review ofNicklassons request for a stay of his execution, a request he brought in apending action challenging the constitutionality of Missouris execution



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SeeOral Argument in Forrest v. Steele, Eighth Circuit Case No. 12-2888, at 44:55

through 45:40 (available online at

http://8cc-www.ca8.uscourts.gov/OAaudio/2014/2/122888.mp3).

The issue here, of course, is not whether the State has an abstract right to

execute a prisoner when a stay motion is pending. It is whether the States own

provision to stay its hand in the face of such a motion is a core provision of its

execution procedures. And it plainly is, because state officials are not a court. It is

emphatically the province and duty of the judicial department to say what the law is.

Marbury v. Madison, 1 Cranch 137, 177 (1803).

C. The district courts earlier order denying a stay to AllenNicklasson materially strengthens Mr. Taylors entitlement tostay.

Although the district court declined to issue a stay of execution to Mr.

Nicklasson, its reasoning strongly supports a stay for Mr. Taylor. The district court

both (a) rejected the defendants argument that the protocol allows an execution

whenever the Director says so, and (b) ruled that Mr. Nicklassons claim was

speculative because the defendants had violated their written procedures in only

the single case of Joseph Franklin.

Because Defendants have violated a portion of their protocol on oneoccasion does not mean Defendants are likely to do it again. Mr.Nicklasson has provided nothing more than speculation that at some

point in the future, a condemned prisoner may be executed in amanner different than another prisoner. Without more, proof ofDefendants one time violation is not sufficient to create a significantlikelihood of success on his equal protection claim.



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ECF Doc. 196 at 10 (emphasis added).

But no one is speculating now. The defendants have since executed two more

prisoners before the federal courts had a final say on whether doing so violated the

federal constitution.Nicklasson v. Lombardi, Eighth Circuit Case No. 13-3664,

Amended Order dated Dec. 23, 2013, at 2 (Bye, J., dissenting); Exhibit B at 2. The

State had thumbed its nose at all three levels of the federal judiciary over the course

of three executions in three months, and all in violation of its own written

procedures. Defendants misconduct equals or exceeds that of their Ohio

counterparts: [T]he only rationale for core deviations that eliminate safeguards and

introduce greater uncertainty into the execution process is to simply complete the

executions at all or nearly all costs. Cooey, 801 F. Supp. 2d at 653.

III. Defendants conduct over the past three executions violates a state-created protection respecting the punishment of persons convicted of

crime, and for this reason violates the Due Process Clause of theFourteenth Amendment.

In Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), the Supreme Court of the

United States held that when a states statutes provided for jury sentencing of the

petitioner before them, and the state courts did not enforce this procedural guaranty

in his favor when he was on trial for a crime, the failure to do so violated the Due

Process Clause of the Fourteenth Amendment. See alsoToney v. Gammon, 79 F.3d 693,

699 (8th Cir. 1996); Wilkins v. Bowersox, 933 F.Supp. 1496, 1525-26 (W.D. Mo. 1996),

affd, 145 F.3d 1006 (8th Cir. 1998).



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The district court required the defendants privies to adopt a written

protocolwhich they had not beforefor the very purpose of affording judicial

review of execution practices before-the-fact. Taylor v. Crawford, No. 05-4173-CV-C-

FJG, 2006 WL 1779035 (Doc. No. 195) at 5 & 7-9 (Order of June 26, 2006). The

protocols provisions for not proceeding with an execution while judicial review is in

progress is a straightforward protection of persons convicted of crime in respect to

punishment. The right not to be killed at the very moment that a court of competent

jurisdiction is considering the specific method is a state-created, federally protected

liberty interest. Defendants could have left this provision out when the district court

ordered them to create the protocol. The fact that it is a part of the protocol is why

they maintain that its current version is confidential under the state statute, Mo.

Rev. Stat. 546.720.2-.4, and why they have attempted to protect themselves from

discovery and from legislative and professional oversight.

It is the height of arbitrariness to defend a lawsuit by killing the plaintiffs one

by one, especially when the courts have not resolved the questions placed before

them. Citing Hill v. McDonough, 547 U.S. 573, 583-84 (2006), defense counsel and the

Attorney General argue that the mere presence of litigation does not entitle a prisoner

to a stay of execution. That is indeed what Hilland other authorities say, but it does

not excuse the States conduct. The issue is not whether and when a federal court

might grant a stay. It is whether the State should refrain from executing the prisoner

so that the court can decide whether to issue a stay in light of the particular litigation



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before it. This simple distinction is not lost on the judiciary: While the current

protocol litigation is not among the category of cases for which Nicklasson was

entitled to an automatic stay of his execution, it was nonetheless a claim that Missouri

would violate the federal constitution by executing him.Nicklasson v. Lombardi, Case

No. 13-3664, Order of Dec. 23, 2013, at 14 (Bye, J., dissenting from the denial of

rehearing); Exhibit B at 14.

Not content to let the courts decide the constitutional issue presented, the

States pattern is to resolve the prisoners claim for itself by executing the claimant.

That is the basis of Judge Byes outrage at the defendants conduct: Nicklasson was

entitled to have this court complete its equitable review under Hillto determine

whether he was entitled to a stay before Missouri executed him. Id.at 14-15.

Fundamental to the rule of law is the principle that, [W]here there is a legal right,

there is also a legal remedy by suit or action at law.Marbury v. Madison, 1 Cranch 137,

163 (1803), quoting William Blackstone, Commentaries on the Laws of England(1769).

The State is free to contest a claim of legal right. But that does not make it proper for

the State to extinguish the claim by means of self-help.



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order and insistence of the district court in earlier litigation, and for the specific

purpose of allowing judicial review of the States execution methods. See Taylor v.

Crawford, No. 2:05-4173-CV-C-FJG, 2006 WL 1779035 at 7-8 (W.D. Mo. June 26,

2006). The purpose of that Order was to make possible the very before-the-fact

judicial review the defendants now seek to avoid. The Eighth Circuit relied on the

protocol to approve the means of lethal injection with FDA-compliant

pharmaceuticals. Taylor v. Crawford, 487 F.3d 1072 (8th Cir. 2007). Those safeguards

are meaningless without the availability of judicial review to enforce them. See Ringo v.

Lombardi, 706 F. Supp. 2d 952, 962 (W.D. Mo. 2010) ([T]he Eighth Amendment

requires protocols that include adequate safeguards against unnecessary pain, and

superior courts have indicated that the involvement of medical professionals and

rules for administration enhances such safeguards.).

B. Mr. Taylor need not show that Missouris execution method violates theEighth Amendment in order show that the defendants are violating due

process and equal protection by not following their established andwritten procedures.

The district court next reasoned that Mr. Taylor has not shown aviolationof

a fundamental right because he has not shown that the defendants execution

method violates the Eighth Amendment. ECF Doc. 370 at 3-4; Exhibit C at 3-4

(emphasis added). But Mr. Taylors claims require no such thing. The equal

protection claim is viable not because the defendants are, or are not, violating the

Eighth Amendment, but rather, because they are violating core safeguards in a



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manner that burdens and threatenstheir constitutional rights, including those

protected by the Eighth Amendment. See Cooey v. Kasich, 801 F. Supp. 2d 623, 652-59

(S.D. Ohio 2011) (deviation from core aspects of written protocol violated equal

protection); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044, 1054-59 (S.D.

Ohio 2012), affd, 671 F.3d 601 (6th Cir. 2012).

The Ohio litigation makes this point abundantly clear, and the authorities

specifically reject the district courts reasoning:

Defendants attempt to transform Plaintiffs Fourteenth Amendmentclaim into a pure Eighth Amendment claim. But the former claimsufficiently targets that the sweeping core deviations at least burdenPlaintiffs fundamental right by negating some of the precise proceduralsafeguards that this Court and the Sixth Circuit heralded in priordiscussions of Eighth Amendmentclaims in this same litigation.

Cooey, 801 F. Supp. 2d at 653 (emphases in original); Cooey v. Kasich, Nos. Nos.

2:04cv1156, 2:09cv242, 2:09cv823, 2:10cv27, 2011 WL 5326141, at *4 (S.D.

Ohio Nov. 4, 2011); In re Ohio Execution Protocol Litig., 840 F. Supp. 2d at 1054. The

Sixth Circuit affirmed a stay of execution on this basis, ruling that the State must

abide by its own procedures: We agree with the district court that the State should

do what it agreed to do: in other words it should adhere to the execution protocol it

adopted. In re Ohio Execution Protocol Litig., 671 F.3d 601, 602 (6th Cir. 2012).

That obligation extends beyond the Equal Protection Clause. Mr. Taylor has

already explained that the State violates due process by violating its own written

procedure that it adopted at the district courts insistence. SeePart III, above. Due



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process additionally guarantees a prisoners access to the courts. Lewis v. Casey, 518

U.S. 343, 351 (1996); Bounds v. Smith, 430 U.S. 817, 825 (1977). That right is

meaningless if the State is free to execute the prisoner before his claims are resolved.

Defendants conduct is thoroughly illegitimate. SeeExhibit D at 3 (Letter from Prof.

James Liebman) (motion for stay should be resolved, not unilaterally by one party to

the dispute, but by the decision of a neutral court of law).

C. The States Chronological Sequence of Execution unambiguouslyforbids the execution process from commencing when stay remedies are

pending.

The district court reasoned that it was unclear whether the defendants

conduct over the last three executions violates their written procedures. Exhibit C at

4; ECF Doc. 370 at 4. Of course, a stay does not require Mr. Taylor to show an clear

and unambiguous entitlement to relief, but only a significant possibility of success on

the merits. Hill v. McDonough, 547 U.S. 573, 584 (2006). In any event, there is no merit

to the defendants argument that an execution may proceed whenever the Director

authorizes it to. The full provision for 11:15 p.m. reads as follows:

11:15 PM Director of the Department of Corrections/designee advises(ERDCC Warden) that (Inmate Name) may be escorted to theexecution room if no stay is in place and no legal activity is inprocess to prevent the execution.

If there is pending legal activity to halt the execution process,(Inmate Name) will remain in his holding cell and there will be noIV or line established until authority is granted to do so by theDirector of the Department of Corrections/designee.

Exhibit A at 2-3. Defendants seize on the last clause, suggesting that the Director is



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free to authorize an execution by granting the authority to do so. ECF Doc. 367 at

5. But the directive expressly cabins the Directors power to give that authorization:

the Director has that authority when no stay is in place and no legal activity is in

process to prevent the execution. If the Director had such authority duringthe

pendency of stay proceedings, then there would be no purpose served by language

allowing him to do so in the absenceof such proceedings. Defendants reading of

the provision makes most of its language pointless.

For that matter, an earlier order of the district court already rejects Defendants

strained reading of the policy. When opposing Allen Nicklassons motion for stay, the

defendants made the same argument in that case that they made in this one. ECF

Doc. 187 at 16-17. But the district court rejected that argument. It concluded

that Defendants had violated their procedures by executing Joseph Franklin when

stay remedies were pending, but it reasoned that Defendants were unlikely to do so

again. SeeECF Doc. 196 at 10 (Because Defendants have violated a portion of their

protocol on one occasion does not mean Defendants are likely to do it again.). Of

course, Defendants diddo so again during the next two executions.

D. Mr. Taylor did not delay, unduly or otherwise, the preparation and filingof the underlying motion for stay.

The district court also reasoned that Mr. Taylor had unnecessarily delayed the

assertion of his equal protection and due process claims. Exhibit C at 2; ECF Doc.

370 at 2. Although Mr. Taylors execution date was not scheduled until January 24,



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the district court noted that Herbert Smulls execution took place on January 29. Id.

The court also observed that Mr. Taylor has numerous attorneys, and that Mr. Taylor

filed two other motions for stay several days earlier than the one asserting his equal

protection and due process claims. Id.

But these circumstances do not justify denying a stay. For one thing, capital

litigation under a death warrant is a harrowing process, and the reason that Mr.

Taylors motion was filed several days after the others is precisely because counsel

were hurriedly and all-encompassingly engaged in litigating Mr. Taylors other

motions. The mere fact that the last motion was filed after the other ones does not

mean that counsel were sitting on their hands, or that time and resources were

available to assert this motion at the same time as the earlier ones. Counsel direct the

courts attention, in particular, to their painstaking and detailed recounting of the

circumstances surrounding the last three executions, and also to the development of

twenty-one related exhibitsall of which are exceedingly painstaking tasks. SeeECF

Docs. 363 at 1-13; ECF Docs. 364-366.

For another thing, the mere fact of a five-day period between the filing of a

motion and an execution date is unremarkable under the circumstances of this case

and is not a sufficient basis for denying a stay. The underlying motion was filed well

in advance stay motions that were filed in relation to the last three executions, and as

to which Defendants filing below does not dispute that Defendantsare responsible

for the fact of having killed three prisoners while the courts were still considering



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their claims. See, e.g., ECF Doc. 157 (Franklin stay motion filed Nov. 18, 2013;

execution scheduled Nov. 20, 2013); ECF Doc. 301 (Smulls stay motion filed Jan. 26,

2014; execution scheduled Jan. 29, 2014). The type of delay described by the

district court is not the type of delay that justifies the denial of a meritorious stay

motion. There is a a strong equitable presumption against the grant of a stay where a

claim could have been brought at such a time as to allow consideration of the merits

without requiring entry of a stay. Hill, 547 U.S. at 584. But there is no way that Mr.

Taylor could have fully litigated his claim without needing a stay. He and his fellow

plaintiffs asserted the instant claims in their First Amended Complaint (filed Dec. 3,

2013) as well as their Second Amended Complaint (filed January 27, 2014). ECF

Docs. 183, 312. The State carried out the three illegitimate executions at issue on

November 20, December 11, and January 29. A trial is set in the district court for

June 2014. Mr. Taylor should be allowed to litigate his claim, rather than having them

extinguished by his execution.

Finally, it is the Defendants themselves who are responsible for the fact that

three prisoners have been executed while their claims were pending, as well as the

fact that Mr. Taylor and his fellow plaintiffs face the same fate. That, anyway, is what

has been found the jurists whose authority the State has flouted. According to Judge

Laughrey, Defendants seem to think that they are able to decide for themselves ...

when they can proceed in the face of pending litigation and when they need not be

concerned about pending litigation. ECF Doc. 242 at 2. According to Judge Bye,



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Nicklasson was entitled to have this court complete its equitable review under Hill

to determine whether he was entitled to a stay before Missouri actually executed

him.Nicklasson v. Lombardi, Case No. 13-3664, Amended Order dated Dec. 23, 2013,

at 2 (Bye, J., dissenting), at 14-15 (Exhibit B). And according to Chief Judge Riley, I

think you need to be a little more patient. SeeOral argument in Forrest, No. 12-2888,

at 45:35 - 45:40.

CONCLUSION

For all the foregoing reasons, Mr. Taylor respectfully requests that the Court

grant his motion for stay of execution, and afford such other relief as law and equity

require.

Respectfully submitted,

SEAN K. KENNEDYFederal Public Defender

DATED: February 24, 2014 By s/ Matthew B. LarsenMatthew B. LarsenDeputy Federal Public Defender321 East 2nd StreetLos Angeles, CA 90012Phone: (213) 894-2911

Counsel for Appellant M.A. Taylor



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CERTIFICATE OF SERVICE

I hereby certify a true and correct copy of the foregoing was forwarded fortransmission via Electronic Case Filing (ECF) this 24th day of February, 2014, to

Susan D. Boresi, Esq.Michael Joseph Spillane, Esq.Stephen David Hawke, Esq.

Andrew Tyler Bailey, Esq.David James Hansen, Esq.

Assistant Attorneys GeneralP.O. Box 899

Jefferson City, Missouri 65102

s/ Matthew B. LarsenMATTHEW B. LARSEN

motion for stay - 8th circuit - epc, dpc, and hasty executions (05035641)

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