Wednesday, November 26, 2008

BREAKING NEWS: U.S. District Court grants stay of execution to Ronald Gray [UPDATED]

Here's a link to Senior Judge Rogers' order staying Gray's execution to allow him to file a habeas petition. Gray v. Gray, No. 08-3289-RDR (D. Kan. Nov. 26, 2008) (order). Judge Rogers ordered that the "stay of execution shall remain in place until further order of the court, and the court requests counsel for the petitioner to transmit this order to appropriate military authorities to notify them of the stay." Judge Rogers also granted Gray's request for appointment of counsel. The United States has moved to reconsider, seeking a withdrawal of the stay because no habeas petition has yet been filed and no specific grounds for habeas relief have yet been identified. The United States also argues that the stay request is dilatory because Gray has known since August that his death sentence was approved and he didn't seek a stay sooner. The United States argues that it "has been prejudiced by Petitioner’s unreasonable delay in filing this current motion." This argument seems hypocritical. Gray's death sentence became final and the window for presidential approval opened when the Supremes denied his motion to reconsider their denial of his cert petition on May 14, 2001. Gray v. United States, 532 U.S. 1035 (2001). The President didn't approve the death sentence until more than 7 YEARS AND 3 MONTHS later. By comparison, Gray filed his request for stay of execution less than four months after the President approved his death sentence. Having waited more than seven years to approve the death sentence, how is the United States harmed by less than four months of delay before a request to stay was filed?

The United States concludes this portion of its brief by arguing that "there is a strong public interest in the timely implementation of criminal sentences which is undermined by the continuation of an unsupported and unsupportable stay." Where was that concern for timely implementation of criminal sentences over the preceding seven years? It is difficult to take this argument seriously when the United States itself has shown no concern for timely implementation of the sentence.

I've posted the United States' complete motion to reconsider the stay of execution and appointment of counsel here.
Posted by Dwight Sullivan at 7:45 PM

9 comments:

Anonymous said...

While I would not expect the judge to grant the motion for reconsideration, or to change his mind about granting the stay, I disagree with the suggestion that it is all the Government's fault for taking so long for the President to approve the sentence to death. This is similar to the argument we see in so many death penalty cases -- the Government took so long to get through all of the appeals that the accused has been punished enough and shouldn't be executed. Of course, it was the appellant who was doing the appealing and caused the delays. Most death-sentenced prisoners are not complaining about the failure to approve their death sentences.

Wed Nov 26, 10:01:00 PM EST
Anonymous said...

Make that

Most death-sentenced prisoners are not complaining about the failure to approve their death sentences in a timely manner.

Wed Nov 26, 10:04:00 PM EST
Dwight Sullivan said...

You seem to miss my point -- which is that the U.S. clearly isn't actually concerned about or prejudiced by delay in the execution of the sentence. If it were, the President wouldn't have taken more than seven years to approve the death sentence.

Why is the United States Justice Department advancing such an argument?

Wed Nov 26, 10:04:00 PM EST
Mike "No Man" Navarre said...

While not fitting the doctrine perfectly, the case does scream for an invited error type argument. The 10th Cir has some very good invited error case law. Might be a stretch for Heat's counsel. Now they just have to identify some potential grounds for relief.

Wed Nov 26, 10:09:00 PM EST
Anonymous said...

After reading through the posted documants, I think the government's point is that sometime, anytime, between 2003 and 2008, Gray could have filed a petition with some court (military or civilian federal; see the never-ending Loving litigation as an example), to evaluate the supposedly clear legal claims Gray is going to present, or even presented the matters his attorney claimed he was going to submit to the Army TJAG in 2003. Sometime, anytime, between August and November 24, 2008, Gray's attorney (who professes to have promised Gray he would fight for him until the very end) could have at least identified the legal issues he plans to argue. The fact that it took seven years to get presidential signature is irrlevant, because that gave Gray's atorney plenty of time to get his act together. The issue is not the length of time, but the last-minute nature. Gray's attorney clearly waited until the last possible moment to file for no other purpose than to necessitate a delay in the execution. This is a standard defense tactic in post-conviction death penalty litigation. While it may be a smart tactic, let's not pretend we're all stupid and claim that its not intentional or contrived for the purpose of keeping Gray alive a little longer. While the government's argument may not carry the day, the argument against last-minute stays when there has been zero activity by the defense in seven years is a reasonable argument to make under the circumstances.

Wed Nov 26, 10:53:00 PM EST
Dwight Sullivan said...

2253 Anon, there are problems with the argument you advance, but that's not the argument DOJ made. Instead, DOJ argued that "there is a strong public interest in the timely implementation of criminal sentences which is undermined by the continuation of an unsupported and unsupportable stay," while ignoring that that purported interest was actually undermined by the President of the United States 20 times more than by the defense. This indicates that the United States isn't actually prejudiced by a few months' delay, because the President of the United States wouldn't prejudice the United States.

And this case didn't even become ripe for a federal habeas until 28 July 2008, so what happened between 2003 and then is irrevelant. That was delay by the government (indeed, by the government's chief executive officer), not by the defense.

Wed Nov 26, 11:00:00 PM EST
Anonymous said...

The fact that POTUS took seven years to approve the sentence, when clearly he legally could have done so is troubling for many reasons, not just in retort to DOJ's recent argument in front fo this DC Judge.

I would guess, though I profess no expertise here, that POTUS probably had some sort of clemency petition in front of him to contemplate when deciding whether to approve the execution or not.

Granted, no defendant is in a rush to get executed, I am sure that no defendant enjoys having to wait seven plus years to find out if in fact POTUS will approve or not. St the very least, a defendant is entitled to know the decision in a timely fashion.

But keep this in mind also, in the federal civilian system (I know, does not necessarily apply) there is a speedy trial provision, not because the accused is entitled to a speedy trial, the 6th takes care of that, but because Congress wanted a speedy resolution of criminal matter to further the public good in speedily getting criminal off of the streets and getting their cases completed for deterrence purposes. Although that act does not apply here, that reasoning does and I would think that prompt approval or decision on the death sentence by POTUS is something that should be done.

Believe me, I am the last to have a bleeding heart for a criminal, but I think there is something to sitting for seven plus years on death row wondering if POTUS will approve or not approve, that is a decision I imagine a criminal defendant would want to know and then, if it does not go his way, he could file all the appeals he has.

The only reason I can think of for POTUS waiting seven years is political, which to me, is very bad and has no place in criminal justice.

Fri Nov 28, 09:50:00 AM EST
Dew_Process said...

There are significant issues in Gray, e.g., being tried, convicted and sentenced to death with a 6 member panel [preserved]; and whether letting the Trial Counsel pick the size of the panel in a capital case, violates due process [also preserved]. Gray was tried before they amended the UCMJ was amended to require a 12 person panel, so the Government's argument that "hey, we only needed a 5 person panel, and gave him 6," is not likely to appeal to the average USDC Judge.

Lastly, Tom Dunn [ex Army JAG] who is Gray's counsel, tried to get a stipulated agreement for more time - his wife has had significant medical problems for the past few months, 3 surgeries, and he's got a bunch of young kids at home. So, he hasn't been dilatory in that regard.

Fri Nov 28, 06:52:00 PM EST
Anonymous said...

Any basis for granting a writ existed long before Gray execution date was set. Failing to provide the court any basis for granting such a writ, and waiting until a couple weeks before the execution to file a request for a stay is is exactly what the government says in its request for reconsideration - a commutation of the death sentence for the period of the stay. As was recently shown in the Denedo grant, your crystal ball is a little foggy these days. Doubt this judge will reconsider, but bet it gets overturned soon on appeal.

Mon Dec 01, 10:23:00 AM EST

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