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No. ___IN the SUPREME COURT of the UNITED STATES No. ___________ IN THE SUPREME COURT OF THE UNITED STATES ________________________ October Term, 2013 __________________________________ WILLIE TYRONE TROTTIE, Petitioner, vs. BRAD LIVINGSTON, Executive Director, WILLIAM STEPHENS, Director, Correctional Institutions Division, Texas Department of Criminal Justice, JAMES JONES, Senior Warden, Huntsville Unit and UNKNOWN EXECUTIONERS; Respondents __________________________________ THIS IS A DEATH PENALTY CASE. MR. TROTTIE IS SCHEDULED TO BE EXECUTED TODAY, SEPTEMBER 10, 2014 ____________________________________ PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________ Maurie Levin* Jonathan Ross Attorney at Law Sussman Godfrey, LLP Tx. Bar No. 00789452 Tx. Bar No. 00791575 211 South Street #346 1000 Louisiana St. Philadelphia PA 19147 Suite 5100 (512) 294-1540 – Tel. Houston, TX 77002 (215) 733-9225 – Fax (713) 651-9366 – Tel. (713) 654-6666 – Fax Attorneys For Plaintiff-Appellant *Counsel of Record; Member, Supreme Court Bar CAPITAL CASE QUESTION PRESENTED 1. Does executing a prisoner using expired drugs violate the Eighth Amendment prohibition against cruel and unusual punishment? 2. In denying injunctive relief, the courts below resolutely ignored substantial evidence that the drugs Texas will use to execute Petitioner are expired and that the use of such drugs substantially increases the risk of grave maladministration of Texas’ execution protocol. Does such a failure to provide meaningful consideration of an urgent issue of national importance so depart from the accepted and usual course of proceedings as to call for an exercise of this Court’s supervisory power? 3. Is this Court’s intervention warranted to resolve those urgent questions, where they are consuming judicial resources through unending litigation and resulting uncertainty concerning secret protocols, shady pharmacies and suspect drugs, misrepresentations by state officials, and the steadily increasing number of botched executions in which unnecessary and degrading suffering have been inflicted on the condemned? i TABLE OF CONTENTS QUESTIONS PRESENTED ............................................................................................................ i TABLE OF CONTENTS ................................................................................................................ ii TABLE OF AUTHORITIES ......................................................................................................... iv OPINIONS BELOW ....................................................................................................................... 1 JURISDICTION ............................................................................................................................. 1 CONSTITUTIONAL PROVISIONS AT ISSUE ........................................................................... 1 STATEMENT OF THE CASE ....................................................................................................... 1 I. OVERVIEW ........................................................................................................... 1 II. RESPONDENTS ACTION DELAYING PRESENTATION AND LITIGATION OF MR. TROTTIE’S CLAIMS .............................................................................. 4 III. RELEVANT FACTS .............................................................................................. 5 I. Texas Execution Protocol ....................................................................................... 5 II. The Drugs Respondents Intend to Use to Execute Mr. Trottie are Beyond their Use Date (Expired) ................................................................................................. 5 III. Respondents’ Assertions are Doubly Suspect In Light Of The Federal Drug Administration’s Recent Condemnation of Eagle Laboratories, Whose Testing Defendants Rely Upon To Assert Potency And Purity ......................................... 11 IV. All Of These Factors And Risks Are Heightened In The Current Landscape, Where Lethal Injection Drugs – Including And Particularly Compounded Pentobarbital – Have Become Increasingly Difficult To Procure ........................ 13 V. There is a Substantial Likelihood that the Use of Expired Drugs to Carry out Mr. Trottie’s Execution will Cause Torturous Pain. .................................................... 14 VI. Relevant Intervening Developments ..................................................................... 15 1. Steadily Increasing Numbers of Botched Executions 2. The Increasing Lengths to Which Departments of Corrections – Including Texas’ – are Willing to Go to Avoid Transparency and Accountability ii 3. Increasing Concerns on the Part of the Courts and the Public in the Wake of these Developments HOW THE ISSUE WAS RAISED AND DECIDED BELOW ................................................... 22 REASONS FOR GRANTING THE WRIT .................................................................................. 24 VII. THE RELEVANT STANDARDS ........................................................................ 24 VIII. THE SUBSTANTIAL LIKELIHOOD MR. TROTTIE WILL PREVAI L ON THE MERITS.. ..................................................................................................... 26 A. Mr. Trottie has Presented Evidence Establishing a Substantial Risk that the Lethal Injection Drug Texas Purportedly Intends to Use Will Result in a Torturous Execution ........................................................................................ 26 B. Mr. Trottie Submits that he is not Required to Proffer an Alternative and Readily Available Method of Execution to Show a Substantial Likelihood of Success on his Eighth Amendment Claim. ..................................................... 29 C. Plaintiff Is Entitled to an Order Compelling Defendants To Disclose Relevant Information Pertaining to the Lethal Injection Drugs They Intend To Use To Carry Out Plaintiff’s Execution ...................................................................... 31 IX. THE FAILURE OF THE COURTS BELOW TO MEANINFGULLY CONSIDER MR. TROTTIE’S MERITORIOUS AND DOCUMENTED CLAIMS IS A SIGNIFICANT DEPARTURE FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS ........................................... 35 X. THERE IS A SUBSTANTIAL THREAT THAT PLAINTIFF WILL SUFFER IRREPARABLE INJURY IF THE INJUNCTION IS NOT GRANTED ............ 35 XI. THE THREATENED INJURY TO PLAINTIFF OUTWEIGHTS THE THREATENED HARM THE INJUNCTION MAY DO TO RESPONDENTS . 36 XII. GRANTING THE PRELIMINARY INJUNCTION WILL SERVE, NOT DISSERVE THE PUBLIC INTEREST................................................................ 37 XIII. THE BALANCE OF THE EQUITIES BENDS DEEPLY IN MR. TROTTIE’S FAVOR ................................................................................................................. 37 CONCLUSION AND PRAYER FOR RELIEF ........................................................................... 38 CERTIFICATE OF SERVICE ..................................................................................................... 39 iii TABLE OF AUTHORITIES Cases United States Supreme Court Cases Baze v. Rees, 553 U.S. 35 (2008) ........................................................................................... passim Bucklew v. Lombardi, 134 S.Ct. 2333 (2014) ............................................................................... 29 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) ................................................ 33 Ford v. Wainright, 477 U.S. 399, 413-414 (1986) ) ..................................................................... 32 Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972) .............................................................................. 33 Gen. Dynamics Corp. v. United States, 131 S. Ct. 1900 (2011) ................................................... 34 Grannis v. Ordean, 234 U.S. 385 (1914) ...................................................................................... 33 Gregg v. Georgia, 428 U.S. 153 (1976) ........................................................................... 28, 32, 33 Hamdi v. Rumsfeld, 542 U.S. 507, ................................................................................................ 33 Hill v. McDonough, 547 U.S. 573 (2006) ......................................................................... 25, 33, 37 Jencks v. United States, 353 U.S. 657 (1957) ............................................................................... 34 Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454 (1989) ) ............................................................... 32 Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................................................... 32 McNabb v. United States, 318 U.S. 322 (1943) ............................................................................ 35 Mullane v. Central Hanover Bank, 339 U.S. 306 (1950) ............................................................. 34 Nelson v. Campbell, 541 U.S. 637 (2004) .............................................................................. 25, 38 Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) ......................................................... 32 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ..................................................... 31 Roviearo v. United States, 353 U.S. 53 (1957) ............................................................................
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