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Wood v. Ryan

United States Court of Appeals, Ninth Circuit

July 21, 2014

JOSEPH RUDOLPH WOOD, III, Plaintiff - Appellant,
v.
CHARLES L. RYAN, Director of the Arizona Department of Corrections; et al., Defendants - Appellees

D.C. No. 2:14-cv-01447-NVW-JFM. District of Arizona, Phoenix.

For Joseph Rudolph Wood, III, Plaintiff - Appellant: Dale A. Baich, Esquire, Assistant Federal Public Defender, Robin C. Konrad, Esquire, Assistant Federal Public Defender, Fpdaz - Federal Public Defender's Office (Phoenix), Phoenix, AZ.

For CHARLES L. RYAN, Director of the Arizona Department of Corrections, RON CREDIO, Warden, ASPC-Eyman, LANCE R. HETMER, Warden, ASPC-Florence, Defendants - Appellees: Matthew H. Binford, Assistant Attorney General, Jeffrey L. Sparks, John Pressley Todd, Esquire, Assistant Attorney General, Jeffrey A. Zick, Esquire, Assistant Attorney General, Arizona Attorney General's Office, Phoenix, AZ; Lacey Stover Gard, Assistant Attorney General, Office of The Attorney General, Tucson, AZ.

Before: THOMAS, Circuit Judge and Capital Case Coordinator. Chief Judge KOZINSKI, dissenting from the denial of rehearing en banc. Dissent from the denial of rehearing en banc by Judge Consuelo Callahan. Judge CALLAHAN, with whom Chief Judge KOZINSKI, Judge O'SCANNLAIN, Judge MCKEOWN, Judge TALLMAN, Judge BYBEE, Judge BEA, Judge M. SMITH, Judge IKUTA, Judge N.R. SMITH, and Judge OWENS join, dissenting.

OPINION

ORDER

THOMAS, Circuit Judge and Capital Case Coordinator.

The full court has been advised of the petition for rehearing en banc. Pursuant to the rules applicable to capital cases in which an execution date has been scheduled, a deadline was established by which any judge could request a vote on whether the panel's July 19, 2014 opinion should be reheard en banc. A judge requested a

Page 1102

vote on whether to rehear the panel's opinion en banc. A majority of the non-recused active judges did not vote in favor of rehearing en banc. Judges Graber, Murguia, and Hurwitz did not participate in the deliberations or vote in this case. The petition for rehearing en banc is denied. The Court's July 19, 2014 opinion, granting a conditional stay of Wood's execution, remains in effect.

DISSENT

KOZINSKI, Chief Judge dissenting from the denial of rehearing en banc:

I have little doubt that the Supreme Court will thwart this latest attempt to interfere with the State of Arizona's efforts to carry out its lawful sentence and bring Wood to justice for the heinous crimes he committed a quarter century ago. There is little I can add to the irrefutable arguments in Judge Bybee's dissent and Judge Callahan's dissental. If Baze could not get a stay of execution under the Eighth Amendment, see Baze v. Rees, 553 U.S. 35, 62-63, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), Wood certainly is not entitled to one under the First.

I take the occasion to point out how we got here. Until about three decades ago, executions were carried out by means designated for that purpose alone: electric chairs were the most common, but gas chambers, hanging and the occasional firing squad were also practiced. See generally Kirk Johnson, In Utah, Execution Evokes Eras Past, N.Y. Times, June 16, 2010, available at http://goo.gl/duIwV0 (discussing Gary Mark Gilmore's execution by firing squad). Most of these means were challenged on Eighth Amendment grounds, but the challenges were largely unsuccessful. See Poyner v. Murray, 507 U.S. 981, 981, 113 S.Ct. 1573, 123 L.Ed.2d 142 (1993) (denying stay of execution by electric chair); Stewart v. LaGrand, 525 U.S. 1173, 119 S.Ct. 1107, 143 L.Ed.2d 105 (1999) (vacating stay of lethal gas execution); Campbell v. Wood, 18 F.3d 662, 687 (9th Cir. 1994) (hanging); Wilkerson v. Utah, 99 U.S. 130, 131-36, 25 L.Ed. 345 (1879) (firing squad). Nevertheless, starting in the late 1970s, states began moving away from these traditional methods of execution and towards using drugs as execution tools. Perhaps this was done in the belief that it would forestall a constitutional challenge to the method of execution; perhaps it was thought to be more humane; and perhaps it was thought to be less brutal. Whatever the reason, the federal government and all states that retain capital punishment now authorize the use of drugs for that purpose, and generally it is the default method of execution.

Whatever the hopes and reasons for the switch to drugs, they proved to be misguided. Subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure. Today's case is only the latest in an unending effort to undermine and discredit this method of carrying out lawful executions. Another symptom of the problem is the decade-long inability (or perhaps unwillingness) of California state officials to come up with an execution protocol, effectively putting the state's death chamber out of commission. See Jones v. Chappell, No. CV 09-02158-CJC, *10 n.7 (C.D. Cal. July 16, 2014). Old age, not execution, is the most serious risk factor for inmates at the San Quentin death row. Then, again, you get odd cases like that of Russell Bucklew, who ...


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