A three-judge panel of the Court of Appeals sent the challenge to the state’s recently-adopted lethal injection protocol back to the trial court today for further findings as to whether that protocol must undergo the administrative rule-making and review process before becoming effective.

Secretary of Public Safety Frank Perry had adopted a new protocol without such review in October 2013, after the General Assembly empowered him to do so with amendments to the law relating to executions passed last June.

Marcus Robinson and three other death row inmates had originally sued the state in 2007, arguing that the three-drug cocktail then used for executions lead to cruel and unusual punishment and that the procedures then in place for administering that injection and completing an execution had not undergone appropriate administrative review.

Wake County Superior Court Judge Donald Stephens ruled in favor of the state on the inmates’ claims in March 2012, but while the case worked its way through appeals, the legislature changed the law on executions, enabling the Secretary alone to determine necessary procedures.

Perry then issued a twenty-page document titled “Execution Procedure Manual for Single Drug Protocol (Pentobarbital)” in October 2013 which in part replaced the three-drug cocktail with a single-drug.

After that change the inmates dropped their claims regarding the drugs used but continued to argue that the protocol followed to complete executions – including issues such as whether a physician should be present to oversee an execution — had to be approved through a rule-making process which included input from members of the public.

At arguments in the Court of Appeals in January, the state argued that it was exempt from rule-making requirements when it came to issues relating solely to inmates in the custody of DPS.

But the inmates contended that the manner of executions was hardly a matter relating only to death row inmates.

“The rules in the Execution Procedure Manual affect not only condemned inmates,” they said in court filings. “They also specifically direct the conduct of a number of other persons connected with executions, including inmates visitors, attorneys, clergy, members of the media, execution witnesses and members of the public.”

Former Supreme Court Justice Robert Orr amplified that argument on behalf of the inmates. “The execution of a citizen of this state is probably the single-most impactful act that the government can do,” he said. “The public’s ability to understand how the procedure works, to understand who is there, to understand what their role is, is part of being an informed public.”

The judges themselves expressed concern during argument over whether the issue was even properly before them, given that the protocol now being challenged was adopted after the 2012 trial court ruling under appeal.  That concern became the basis for the Court’s decision today.

Writing for the panel, Judge Robert C. Hunter said:

The order from which plaintiffs appealed contains no findings of fact or conclusions of law relating to the sole issue before us. Nor could it. These arguments could not have been considered by the trial court when it entered the 12 March 2012 order because they stem entirely from subsequent changes to section 15-188 and the execution protocol made during pendency of this appeal. Thus, in effect, we have nothing to review. Absent a ruling from the trial court on these matters, we are without authority to consider them in the first instance on appeal.

Read the full decision here.

In a ruling handed down yesterday, U.S. District Judge Terrence Boyle dismissed a challenge to the 2013 redistricting of the Wake County School Board as violative of the one-person, one-vote requirements of the United States and North Carolina Constitutions.

A diverse group of plaintiffs filed the lawsuit in August contending that the legislature over-populated their newly drawn Wake County School Board districts, thus weakening their vote in contrast to voters in adjacent districts.

In his ruling, Boyle found that the population disparities in the new districts did not reach levels necessary to support a challenge under one-person, one-vote provisions.

Boyle also found that at its core the challenge to the new districts amounted to a claim of political gerrymandering which the courts will not consider:

All of the factors which plaintiffs say point to taint of arbitrariness or discrimination lead back to politics. Plaintiffs allege a favoritism of rural areas of the county over urban areas and they allege the targeting of democratic incumbents by the placement of three democratic incumbents into two republican leaning districts with republican incumbents. However, plaintiffs admit that the end result is political advantage. Plaintiffs do not argue that the population deviations are a result of discrimination on the basis of race or some other suspect classification. They claim only an impermissible political bias.

Read the full decision here.

(Jeffrey A. Camarati/WRAL Contributor) Photographer: Jeff Camara

 

St. Patrick’s Day celebrations started early here in Raleigh with the annual parade on Saturday, but the revelry continues today with plenty of parades, pints and parties, and  green everywhere —  in our bagels, in our beer and in our water.

Largely the creation of Irish-Americans, the day has moved beyond a simple celebration of an Irish saint and become more of a way to raise a glass in honor of those with roots in Irish soil. Sláinte (the Irish word, pronounced SLAN-cha, for “health”)!

Of course the real St. Patrick wasn’t even Irish by birth.  Rather, according to this report, he was born in Britain around A.D. 390 “to an aristocratic Christian family that owned a townhouse, a country villa, and plenty of slaves.” At 16, he was  kidnapped and sent to Ireland as a slave.  He then escaped to home seven years later only to return to Ireland where he began converting folks to Christianity. Legend has it that Patrick used the three leaves of a shamrock to explain the Christian holy trinity: the Father, the Son, and the Holy Spirit.

It’s not all booze and blarney, though, and plenty of folks take the opportunity to show solidarity with ethnic and other groups and to remind people of lessons learned from the immigrant experience.

The mayors of  New York and Boston, for example, are boycotting their cities’ parades because of bans on gay marchers.

In Washington, D. C. ,  delegates from the Irish Lobby for Immigration Reform — wearing t-shits with the words “No Irish Need Apply?  Why?” – met with key House members, including all GOP members of the Judiciary and GOP Leadership, to “remind them of what’s at stake for the Irish-American community.” In several North Carolina GOP districts, Irish-Americans represent a sizeable chunk of the population, including 13.3% in Rep. George Holding’s district and 11.2% in Rep. Howard Coble’s district.

And in the New York Times this weekend, writer Timothy Egan derided U.S. Rep. Paul Ryan and fellow colleagues of Irish descent on the Hill for invoking their heritage when convenient, but overlooking the atrocities that sent their ancestors across the ocean:

Ryan boasts of the Gaelic half of his ancestry, on his father’s side. “I come from Irish peasants who came over during the potato famine,” he said last year during a forum on immigration.

BUT with a head still stuffed with college-boy mush from Ayn Rand, he apparently never did any reading about the times that prompted his ancestors to sail away from the suffering sod. Centuries of British rule that attempted to strip the Irish of their language, their religion and their land had produced a wretched peasant class, subsisting on potatoes. When blight wiped out the potatoes, at least a million Irish died — one in eight people.

[Yet] in 2012, Ryan said that the network of programs for the American poor made people not want to work.

On Wednesday, he went further, using the language of racial coding. This, after he told a story of a boy who didn’t want his free school lunch because it left him with “a full stomach and an empty soul.” The story was garbage — almost completely untrue.

Apparently Ryan and his friends are unable to walk the talk of those who came before them.

And with that, we segue out of Lunch Links with a far better walk, with Irishmen and bagpipes. . .

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Wake County Superior Court Judge Paul Ridgeway ruled today that Duke Energy must take immediate action to eliminate the sources of groundwater contamination that are currently violating water quality standards at all 14 of its coal-fired power plants in North Carolina.

According to the Southern Environmental Law Center, the ruling comes in the wake of recent claims by the Department of Environment and Natural Resources (DENR) that it lacks the legal authority to require cleanup of the ash ponds which hold millions of gallons of toxic coal ash.  DENR’s comments were made in response to the February 2014 coal ash spill that dumped up to 35,000 tons of coal ash into the Dan River.

“The ruling leaves no doubt, Duke Energy is past due on its obligation to eliminate the sources of groundwater contamination, its unlined coal ash pits, and the State has both the authority and a duty to require action now,” said D.J. Gerken, senior attorney at the Southern Environmental Law Center who represented the conservation groups in the case.  “This ruling enforces a common-sense requirement in existing law - before you can clean up contaminated groundwater, you first must stop the source of the contamination- in this case, Duke’s unlined coal ash pits.”

Read the court’s full order here.

 

justice2We open today’s Lunch Links with an important public service announcement, particularly in light of the report out this week showing North Carolina still woefully behind other states in providing legal assistance to those who can’t afford an attorney — a number that unfortunately continues to grow.

Tomorrow, March 7, from 7 a.m. to 7 p.m., the state Bar Association will host its annual “Ask a Lawyer Day,” during which callers can get free answers to legal questions and problems.  Here’s more information:

Statewide, there will be eight call centers filled with lawyers answering callers’ legal questions. Locally, lawyers will be manning the phones at the Volunteer Center, and Greensboro’s WFMY News 2 will be covering the event live. Anyone with legal questions may call the local call center by dialing 877.391.6179 and speak directly to a lawyer. A call center for Spanish speakers is available at 855.455.4255 between 8:30 a.m. and 5:30 p.m. All calls are free and confidential– callers will not be asked for their name or contact information.

The event is part of the Bar Association’s “4ALL” campaign to raise support for Legal Aid.   Last year, close to 500 lawyers, paralegals, law students and other volunteers answered questions from nearly 10,000 callers.

Click here for the event announcement. Click here if you’d like to participate.

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Speaking of justice, and injustice, the U.S. Senate yesterday refused to confirm President Obama’s nominee for assistant attorney general of the Justice Department’s Civil Rights Division, Debo Adegbile.  The reason?  Adegbile did his job as an attorney  when he was litigation director of the NAACP Legal Defense and Educational Fund, representing Mumia Abu-Jamal on an appeal of his death sentence for killing a Philadelphia police officer decades ago.

That vote should be cause for concern for most attorneys, as well as for anyone who understands and believes that  “a fundamental tenet of our justice system and our Constitution is that anyone who faces loss of liberty has a right to legal counsel,” as the president of the American Bar Association, James R. Silkenat, explained to the Senate Judiciary Committee. “Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government—even to those accused or convicted of terrible crimes,” he added

As Slate’s Dahlia Lithwick says in this blistering critique of the Adegbile vote:

To be clear, then: Adegbile was not himself a cop-killer. He didn’t help a cop-killer get off and roam free with false claims of innocence. What he did do—which fits pretty readily within the historic mandate of the NAACP’s Legal Defense Fund—was to help ensure that the American criminal justice system, and especially the death penalty, is administered fairly and constitutionally. As a representative of an organization that is institutionally dedicated to ensuring that justice is administered fairly, he fought for fairness and judges agreed that unfairness occurred.

Once upon a time in America this was called advocating for justice. But in today’s America, it’s deemed a miscarriage of justice. And so the fact that Adegbile has long been one of the most skilled and principled civil rights attorneys in the country is cast by Senate Republicans as a kind of catastrophic public scam.

Lithwick was not alone in her attack on all Senate Republicans and the seven Democrats who voted no on Adegbile. Editorials across the country derided the vote, and Ari Berman at The Nation likened the Republican pre-vote smear campaign — labeling Adegbile a “cop killer” — to George Bush’s Willie Horton ad, proof that “race-based gutter politics are still not a thing of the past.”

Berman added:

In disqualifying Adegbile, senators are establishing a very dangerous precedent that attorneys are responsibile for all of the actions of their clients. “LDF’s advocacy on behalf of Mr. Abu-Jamal does not disqualify Mr. Adegbile from leading the Civil Rights Division,” prominent members of the Supreme Court bar wrote to the Senate Judiciary Committee earlier this year. “To conclude otherwise would send the wrong message to any lawyer who is affiliated, or might be asked to become involved, with a difficult, unpopular case for the purpose of enforcing and preserving important constitutional principles.”

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On a lighter note, Full Frame Documentary Festival — on its way to Durham in April — released its lineup of films, with plenty of variety. Here’s just a few:

112 Weddings (Director: Doug Block)
Documentary filmmaker and part-time wedding videographer Doug Block tracks down couples he’s filmed over the years, contrasting past with present to see how love and life have unfolded after vows. World Premiere

Alive Inside: A Story of Music & Memory (Director: Michael Rossato-Bennett)
When a social worker discovers that music can unlock the memories of patients whose minds are clouded by dementia, he embarks on a mission to transform lives one iPod at a time.

The Battered Bastards of Baseball (Directors: Chapman Way, Maclain Way)
A celebratory portrait of the Portland Mavericks, who joined the minor leagues in 1973 as the lone single-A team without a major-league affiliation.

Freedom Summer (Director: Stanley Nelson)
Remarkable archival footage and unforgettable eyewitness accounts take us back to the summer of 1964, when hundreds of civil rights activists entered Mississippi to help enfranchise the state’s African American citizens.

The Case Against 8 (Directors: Ben Cotner, Ryan White)
This behind-the-scenes film, shot over five years, follows the unlikely team who fought to overturn California’s ban on same-sex marriage, and won.

WHITEY: United States of America V. James J. Bulger (Director: Joe Berlinger)
This true-crime doc examines the sensationalized trial of a notorious South Boston gangster and brings new allegations of law-enforcement corruption to light.