IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

WESLEY EUGENE BAKER,

*

Plaintiff,

*

v.

* Civil Action No.

MARY ANN SAAR, SECRETARY, et al., *

Defendants.

*

NOTICE OF REMOVAL

Defendants Mary Ann Saar, Secretary of the Maryland Department of Public Safety and

Correctional Services, Frank C. Sizer, Jr., Commissioner of the Maryland Division of Correction,

Lehrman Dotson, Warden of the Maryland Correctional Adjustment Center, and Gary

Hornbaker, Warden of the Metropolitan Transition Center, by their attorneys J. Joseph Curran,

Jr., Attorney General of Maryland, and Scott S. Oakley, Assistant Attorney General, hereby give

notice of the removal of the case entitled Wesley Eugene Baker v. Mary Ann Saar, et al., Case

No. 24-C-05-010379 (Circuit Court for Baltimore City) to the United States District Court for

the District of Maryland, pursuant to 28 U.S.C. §§1441 and 1446. In support of their Notice of

Removal, Defendants state the following:

1. This civil action is brought by Wesley Eugene Baker, a Maryland inmate under

sentence of death, who is scheduled to be executed during the five-day period beginning 12:01

a.m. Monday, December 5, 2005. Plaintiff Baker brings this action against certain senior

officials of the Maryland Department of Public Safety and Correctional Services and against

“unknown executioners.”

2. This action was commenced when it was filed in the Circuit Court for Baltimore City

on Monday, November 28, 2005. This action is currently pending in that court.

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3. All Defendants in this action are represented by the Office of the Maryland Attorney General and they do not object to the removal of this action to this Court.
4. No further proceedings, aside from informal preliminary scheduling matters, have taken place in the Circuit Court for Baltimore City in this action.
5. Plaintiff’s claims arise from his scheduled execution. Plaintiff claims that the procedures to be utilized by Defendants in the administration of the “lethal injection” will violate his rights under the Eighth and Fourteenth Amendments of the United States Constitution.
6. Plaintiff also claims that the lethal injection procedures will violate his rights under the Maryland Declaration of Rights, under Md. Code Ann. Corr. Serv. §3-905, “Method of execution,” and under Md. Code Ann. State Gov’t §§10-101 et seq. (the State Administrative Procedure Act or “SAPA”.
7. The removing parties are all Defendants in this action. 8. This Court has original jurisdiction over this action under 28 U.S.C. §§1331 and 1343(a)(3). This action is therefore subject to removal to this Court pursuant to 28 U.S.C. §§1441(b) and (c). This Court has supplemental jurisdiction of the state law claims pursuant to 28 U.S.C. §1367(a). 9. Pursuant to Local Rule 103.5, copies of all papers served on Defendants to date are attached hereto as Exhibits 1-6. 10. This notice is being filed with this Court within 30 days after service of original papers on the removing parties in this action. 11. By removing this action to this Court, Defendants are not consenting in any way to any waiver of sovereign immunity under the Eleventh Amendment of the United States
2

Constitution. The undersigned is not authorized under Maryland law to waive the immunity of the State of Maryland under the Eleventh Amendment of the United States Constitution.
Respectfully submitted, J. JOSEPH CURRAN, JR. Attorney General of Maryland
_____________/s/______________ SCOTT S. OAKLEY Assistant Attorney General Federal Bar No. 3608 Maryland Department of Public Safety and Correctional Services 6776 Reisterstown Road, Suite 313 Baltimore, Maryland 21215 Telephone: (410) 585-3073 Facsimile: (410) 764-5366 Attorneys for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 29th day of November, 2005, a copy of the foregoing Notice of Removal was mailed, first class postage prepaid, to Michael E. Lawlor, Esq., Lawlor & Englert, LLC, 6305 Ivy Lane, Suite 704, Greenbelt, Maryland 20770.
_____________/s/______________ SCOTT S. OAKLEY
3

 
 IN THE CIRCUI T COURT FOR 8ALTIMORE CITY, MARYLAND W ESLEY EUGENE BAKER. Plaintiff,

Mary Ann Saar, Secretary. Department of Public Safety and Correctional Services

Civil Action No______

Frank C. Sizer, Jr., Commissioner Maryland DiviSion of Correction
Lehrman Dotson, Warden Maryland Correctional Adjustment Center Baltimore, Maryland

IMMINENT EXECUTION SCHEDULED FOR WEEK OF DECEMBER 5.

Gary Hornbaker, Warden Metropolitan Transition Center

,nd

UNKNOWN EXECUT IONERS,

Defendants.

COMPLAINT FO R INJUNCTIVE RELIEf AND DECLARATORY JUDGMENT

I. Nature of Action

1. This action is brought pursuant to Md. Code Ann ., Cts. Jud. Proc. § 3-403

(declaratory relief), J-.406 (injunctive and declaratory relief), and 3-409 (declaratory

relief) for violations and threatened Viota tions of Md. Code Ann. , COIT. Serv., § 3·905,

for violations and threatened violations of the right of Plaintiff to be free from cru el

and unusual punishment under the Eighth and Fourteenth Amendments to the

United States Constitution

_ii.' 23. 24 , and 25 of the Maryland

Declaration of Rights, and pursuant to Md. Code Ann. , State Gov't § 10-125 {declaratory relief} for violations of the Administrative Procedure Act.
2. In this action, Plaintiff claims that Defendants' current lethal injection procedure violates Md. Code Ann., Carr. SeN., § 3-905 (Method of Execution) because the Execution Procedures require the administration of chemicals not authorized by the statute, and the procedure s do not requ ire a continuous intravenous administration of a short acting barbiturate, as req uired by § 3-905.
3. The Defendants' "Execution Protocol" is a regulation that was enacted in violation of the Administrative Procedure Act (APA). Defendants fulfilled none of their obligations under the APA in the adoption of this reg ulation. Not only does the Execution Protocol exceed the statutory authority granted to the Department of Public Safety and Correctional SeNices (DPSCS), but DPSCS and the DOC adopted a regulation dea li ng with the laking of human life without: (1) submitting the protocol to the Attorney General or unit counsel for approval as to legality; (2) submitting the proposed regulation to the General Assembly's Joint Committee on Administrative, Executive, and Legislative Review (AELR Committee) at least 60 days prior to its adoption; (3) publishing the proposed regulation in the Maryland Register at least 45 days prior to its adoption; nor did it (4) after adopting the Execution Protocol, submit the full text of the regulation to the Administrator of the Division of Stale Documents for publication in the Maryland Register and the Code of Maryland Regulations (COMAR). Per the APA, a regulation is not effective until
2

each of Ihose requirements has been met. 4. Plaintiff also ctaims that Defendants' current method of lethal injection can
and will, in effect, cause him to be tortured to death. No government within the United States can intentionally or negligently use an excruciatingly painful , arbitrary, cruel, and unreliable method of execution. The United States Constllution and the Marylan d Declaration of Rights simply will not countenance a punishment which permits extraordinary or prolonged pain or suffering.
5. Plaintiff is not saying that Defendants could never execute him, only that any execution must comport with Md Code Ann. , Corr. Serv., § 3-905 , the APA, and the United States Constitution and Maryland Declaration of Rights . Plaintiff could be executed if: 1) no separate legal challenges upend his conviction or death sentence; 2) he does not receive executive clemency; 3) Defendants design a constitutionally acceptabte method for executing Plaintiff which is adopted pursuant to the provisions of the APA, which can include lethal injection if done in a manner that does not unnecessarily ri sk the infliction unnecessary pain and suffering; and, 4) Defendant's execution of Plaintiff is conducted consistent with the manner established by the Legislature and codified at § 3-905 of the Correctional Services Article.
6. Plaintiff seeks an Order declaring that Defendants' current Execution Procedures for lethal injection violates § 3-905 of the Correctional Services Article.
7. Plaintiff seeks an Order declaring that the Defendants' adoption of
3

regulations pertaining to the method and manner of execution violates Md. Code. Ann , State Gov't., §§ 10-101 through 10·125.
8. Plaintiff also seeks an Order declaring that Defendant's current method of conducting an execution by lethal injection violates the Eighth and Fourteenth Amendments to the United States Constitution , and Articles 16, 21, 23, 24 , and 25 of the Maryland Declaralion of Rights.
9. Plaintiff furt her seeks a temporary restrain ing order, and preliminary injunction preventing Defendants from executing him by the means currently employed for carrying out an execution by lethal injection in Maryland.
II. Plaintiff 10. Wesley Eugene Baker is a United States citizen and a resident of the State of Maryland. He is currently a death-sentenced inmate under the supervision of the Maryland Department of Corrections , Inmate Number 227-728 . He is held at the Maryland Correctional Adjustmen t Center, 410 East Madison Street, Baltimore, Maryland 21202.
m. Defendants 11 . Defendant Mary Ann Saar is the Secretary of the Maryland Department of Public Safety and Correctional Services. Defendant Frank C. Sizer, Jr. , is the Commissioner of the Maryland Division of Correction (DOC ). Defenda nt Dotson is the Warden of Maryland Correctional Adjustment Center where death row inmates are housed. Gary Hornbaker is the Warden of the Metropolitan Transition Center
4

(formerly the Maryland Penitentiary) where the execution of Mr. Baker will occur. Defendants, Unknown Executioners, are employed by or under contract with the Maryland Division of Correction to make preparations for, and carry out, the scheduled execution of Plaintiff. They include, but are not limited to, physicians, EMT's, physician's assistants, the "execution commander," and the "execution team." Plaintiff does not yet know their identities and it is Plaintiffs understanding that Defendants will not reveal the identilies of these persons.
IV. Ju ri sdictio n and Venue 12. This Court has jurisdiction pursuant to Md. Code Ann., State Gov't § 10125, and Md. Code Ann ., Cts. Jud. Proc., § 3-403 , 3-406, and 3-409. This action arises under Md. Code Ann., State Gov't § 10-101through §10-125 , Md. Code Ann., Corr. Serv., § 3-905, the Eighth and Fourteenth Amendments to the United States Constitution, and Articles 16, 21, 23. 24, and 25 of the Maryland Declaration of Rights . 13. Venue in this Court is required as , per Md. Code Ann .. State Gov't § 10125(a)(2), a Petition for Declaratory Judgment filed pursuant to this State's APA "shall be filed wlth the circuit court for the county where the petitioner resides or has a principal place of business ." Petitioner resides in Baltimore City. Venue in this Court is also proper inasmuch as this Court has personal jurisdiction over the defendants in this matter because the events giving rise to this claim will occur in Baltimore, Maryland .
5

V. Facts 14. Plaintiff Wesley Eugene Baker's execution is scheduled for the week of
December 5, 2005. Defendants are responsible for carrying out this execution. Mr. Baker's execution will occur al the Metropolitan Transition Center, 954 Forrest Street, Baltimore, Maryland 21202.
A. Facts Relevant to Statutory Violation and Violation of the APA
15. The manner of judicial executions in Maryland are governed by Md. Code
Ann., Carr. Serv. , § 3-905, which provides that:
The manner of inflicting the punishment of death shall be the con tinuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according 10 accepted standards of medical practice. 16. The Maryland Department of Public Safety and Correctional Services has implemenled administrative regulations for carrying out executions.'
17. These administrative regulations cannot contradict or violate Maryland
statutes.
18. Md . Code Ann., Corr. Serv., § 3-905 only permits the lethal administration
of two chemicals during the execution of a condemned inmate: (1)"a lethal quantity of an ultrashort-acting barbiturate or other similar drug in combination !{2J with a
chemical paralytic agent.'
, State of Marytand Department of Pubtic Safety and Corredional Services Division of Correction, Division of Correctional Manual 110-2 Execution Procedures (attached to Mr. Baker's Memorandum of Law as Exhibit 1).
6

19. Despite this statutory regulalion, the ' Execution Procedures' require the administration of three chemical substances:
a) sodium pentothal (also referred to as Thiopental) (an ultrashort acting barbiturate)
b) Pavulon (also referred to as pancurium bromide) (a chemical paralytic agenl); and,
c) potassium chloride (an extraordinarily painful chemical which activates the nerve fibers lining the person's veins and which interferes with the rhythmic contractions of the heart, causing cardiac arrest).
20. By administering three chemicals , Defendants are In viola tion of Md. Code Ann., Corr. Serv., § 3-905.
21. Potassium chloride is an extraordinarily painful chemical which activates the nerve fibers lining the inmate's veins and which can interfere with the rhythmic contractions of the heart and cause cardiac arres!.
22. Potassium chloride is neither "an ultra short-acting barbiturate or other similar drug' nor a "chemical paralytic agent." Rather, as noted in 11 21, it is designed 10 induce card iac arrest.
23. The usage of potassium chloride during a lethal injection is not permitted by statute.
24. Md. Code Ann., Corr. Serv., § 3-905 also mandates the ' continuous
intravenous administration of a lethal quantity of an ultrashort-acting barbiturate or
7

other similar drug." 25. The "Execution Procedures," however, require two distinct doses of
sodium pentothal (ul trashort-acting barbiturate) rather than a continuous administra tion.
26. A Court shall declare a regulatory provision invalid if it viol ates any provision of the United States or Maryland Constitution, exceeds the statutory authority of the executive agency, or if the agency did not comply with the APA when it was drafted as a regulation.
27. The DOC, a unit of the DSPCS, adopted a regula tlon,2 namely its Execution Protocol, without submitting it to the Attorney General or unit counsel for approval as to its legality; (2) without submi tting the proposed regulation to the General Assembty·s Joint Committee on Administrative, Executive, and legislative Review (AElR Committee) at least 60 days prior to adoption; (3) wi thout publishing
the Execution Protocol in the Maryland Register at least 45 days prior to adoption ;
and (4) after adopting the Execution Protocol , DOC did nol submi t the fu ll text of the regula tion to the Administrator of the Division of State Documents for publication in
2 A regulati on is a statement, or amendment or repeal of a statement. that (1) has general application arKI future effect, (2) is adopted (i) to detail or carry out a law that the unit administers, (ii) govern the organization or procedure of the unit, or (iii) govern practice before the unit; and (3) is in any fonn. including a guideline, rule, standard, statement of interpretation, or statement of policy. Md. Code Ann. , State Gov'l. § 10-101 (g)(I ).
8

the Maryland Register and the Code of Maryland Regulations.'

28, Because the Execution Protocols are nol adopted pursuant to the APA,

they may be changed at any time, without notice to the dealh sentenced inmate or

his counsel, and without being subject 10 medical or legal evaluation,

B. Facts Relevant to Unnecessary Pain and Suffering

29. There are a number of risks associated with the DOC's execution

protocol which include, but are not limited to, the following:

I

(a) First, in violation of medically approved procedures, the process fails to

employ properly trained persons to carry out wI1at is, in effect, the surgical induction

of anesthesia.

(b) Second, it arbitrarily and unnecessarily uses drugs that create significant

risks that condemned prisoners will suffer completely unnecessary pain during

execution.

30. Defendants' have arbitrarily selected three drugs that unnecessarily risk

conscious suffering in the combinations, and procedures which lis executioners use.

31. The first drug, Thiopental, is an ultra-short acting barbiturate which acts

to depress the central nervous system to produce unconsciousness and anesthesia.

Thiopental derives its utility in surgical procedures from its rapid onset and rapid

1 Not only have Defendants not published the Protocol in the Maryland Register, but they refuse to disclose the full text of the protocol to counsel for Mr. Baker, as well as counsel for other death row inmates In Maryland , all of who have requested copies of the protocol pursuant to this State's Public Information Act, on the basis thai portions of the Protocol concern "security measures:
9

redistribution through the body at low (surgical) doses. Typically, Thiopental is used in Ihe induction ph ase of anesthesia to temporarily anesthetize patients for sufficient time to, for example, intubate the trachea. Thiopental is a drug which requires skill to administer and should only be administered by a person qualified in the use of intravenous anesthetics.
32. If it is necessary to maintain a patient in a surgical plane of anesthesia for longer than just a few minutes, drugs other than Thiopental are typically used. If Thiopental is going to be used not only to induce, but also to maintain, a surgical plane of anestnesia, a qualified person must be present to assure that the Thiopental has been correctly administered and is maintaining the patient in a state of unconsciousness.
33. Defendants' protocol does not require any person 10 monitor the plane of anesthesia during execution.
34. When a neuromuscular blocking agent is administered, it paralyzes all voluntary muscles. Respiration is impossible. It locks the recipient in a chemical tomb, where he is conscious, but unable to signal distress and unable 10 breath, and eventua lly dies by asphyxiation. Death by asphyxiation involves Intense, visceral pain and has, as a method of execution, been ruled unconstitutional as violative of Ihe Eighth Amendment.
35. The risks of neuromuscular blocking agents are well known. The American Veterinary Medical Association ("AVMA") prohibils the use of
10

neuromuscular blocking agents in combination with the barbiturate anesthetics. This Slate prohibits the use of neuromuscular blocking drugs in the euthanizalion of animals.
36. Neuromuscular blockin g agents must be administered with great care because they have no effect on consciousness or the abil ity to sense and perceive pain. Unless consciousness is assessed before the administration of the neuromuscular blocker, the paralysis induced in the patient will prevent anyone,
I
even a person with advanced medicattraining , from ascertaining whether a patient is awake and capable of experiencing pain.
37. Neuromuscular blocking agents are typically accompanied by product
I
warnings that require the drugs to be administered by experienced clinicians who are familiar with the drug's actions and the possible complications of its use and cautioning that the drugs have no known effect on consciousness, pain threshold, or cerebration. Therefore, administration must be accompanied by adequate anesthesia or sedation.
38. The effect of neuromuscular blocking agents in immobilizing patients and masking external indications of their pain is well known. Patients who have been administered neuromuscular blocking agents with inadequate anesthesia have been conscious during surgery and have reported terrifying and torturous experiences where they were alert, experiencing pain, yet utterly immobilized and unable to signal their distress.
11

39. The consequences of erroneous administration of neuromuscular blocking agents is so profound thai at least ei9hteen states, including Maryland, Md. Code Ann., Criminal law, § 10-611 (2002), have banned by statute the use of such drugs in Ihe euthanization of animals. The AVMA never permits the use of neuromuscular blocking agents in combination with barbiturate anesthetics. Defendants have adopted a protocol and procedure to kill the State's condemned prisoners thai is considered too risky and dangerous for the euthan ization of pets. There is no need to risk the conscious suffocation of these prisoners as a result of the administration of neuromuscular blocking agents. Other drugs are available to satiSfy Maryland's statutory requirement for a "paralytic agent" that do not affect respiration. Using these alternate drugs would eliminate the risk that a condem ned prisoner will consciously asphyxiate.
40. When a concentrated dose of Potassium Chloride is injected periphera lly into the vein of an arm it fee ls like a fire traveling through the vein to the heart. Death by Potassium Chloride poisoning is known to be so excruciating that the AVMA prohibits use of Potassium Chloride as the sale agent of euthanasia and, if it is to be used at all , only used after the subject has reached a surgical pla ne of anesthesia.
41. Potassium Ch loride, contains essentlal blood ions and is typically administered in trace amounts as a necessary electrolyte. While a certain potassium level is important for normal cardiac electrical activity, a rapid increase in blood concentration of potassium causes cardiac arres!. Injection of concentrated
12

potassium activates sensory nerve fibers, causing severe pain as the drug travels through the venous system. There is universat medical agreement that, without anesthesia, an injection of a Potassium Chloride overdose causes excruciating pain.
42. The American Veterinary Medical Associ ation is so confident that death by Potassium Chloride will cause unnecessary suffering th at it prohibits its use as a euthanasia agent unless the practitioner administering the Potassium Chloride has the skill and training to assure that the subject to be euthanized has reached a surgical plane of anesthesia.
43 . The Maryland method of execution statute does not require the administration of Potassium Chloride and Defendants have arbitrarily and needlessly added Potassium Chloride (which is universally acknowledged to be painful) to the protoco l.
44. Administration of intravenous (IV) anesthesia requires proficiency at achieving and maintaining IV access. But the sources of error are many:
(a) IV catheters must be inserted into a vein and not through the vein into tissue . If a catheter is incorrectly placed, the drugs flowing through the IV lines can infiltrate the tissue surrounding the cathe ter rather than correctly entering the vein.
(b) Defenda nts' are unqualified to create IV access. Unknown executioners are not competent to administer drugs intravenously and are not expert in the process of inserting and maintaining IV catheters.
(c) On information and belief, no one monitors the IV ca theters throughout
13

executions, leaving open the possibility thai IV ca th eters can become disconnected throughout the process.
(d) In the event thai the administer of the IV cannot achieve venous access in a peri pheral vein in a hand or arm, Defendants' may have to create venous access through the invasive and painful processes of inserting a percutaneous central line (tunneling under the skin to reach th e subclavian or central vein) or performing a surgical cut down (where a vein is exposed by incision or catherilized). Because these tech niques of venous access require much more skill and training and are far more invasive th an peripheral vein access, they are normally performed in highly equipped emergency rooms or operating theatres. Defendants' have not ptanned for the possibility that they wilt fail to gain intra venous access through more basic means.
45. This risk of unnecessary pain and suffering is also particularly grave in Maryland because the proced ures and protocols designed by Defendants:
(a) do not establish appropriate criteria and standards that personnel must rely upon in exercising their discretion during the lethal injection procedures;
(b) do not include or require the execution team to determine that the condemned inmate is unconscious prior to ad ministering the second and third chemica ls ;
(c) do not establish the methods fo r obtaining, storing, mixing , and appropriately labeling the drugs;
14

(d) do not establish the manner in which a heart monitoring system shall be inslalled and utilized to ensure that Ihe inmate is deeply sedated while dying and the qualifications and expertise required for the person who operates this equipment;
(e) do not establish the manner in which the IV ca th eters shall be inserted into the condemned inmate, and the minimum qualifications and expertise required for the person who is given the responsibility and discretion to decide when efforts at inserting the IV catheters should be abandoned in favor of some other constitutionally acceptable procedure.
46. Training and experience are essenlialto the success of the execution as a humane process. Defendants' personnel and executioners are not properly trained In the art of administering intravenous drugs.
VI. CLAIMS FOR RELIEF Claim A.
47. Plaintiff incorporates paragraphs 1-46 by reference. 48. Defendants are acting outside of. beyond. and in direct violation of their statutory authority by administering potassium chloride , a drug that is not permitted by Md. Code Ann., Carr. Serv., § 3·905.
Claim B. 49. Plaintiff incorporates paragraphs 1-48 by reference. 50. Defendants are in direct violation of Md. Code Ann., Carr. Serv., § 3·905 by failing to provide for a "continuous intravenous administration of a lethat quantity
15

of an ultrashort.acting barbiturate or other similar drug, " ClalmC.
51. Plaintiff incorporates paragraphs 1·50 by reference. 52 . Each allegations stated in Claims A-S constitute an independent violation of the doctrine of separation of powers because it constitutes an improper delegation of legislative authority to Ihe executive branch and a violation of this State's Administrative Procedure Act.
Claim O. 53 Plaintiff incorporates paragraphs 1·52 by reference, 54. Defendants are in direct violation of Md . Code. Ann, State Gov't.. §§ 10101 through 10-125 by adopting a regula tion pertaining to the manner and method of executing an inmate sentenced to death without: (1) submitting the protocol to the Attorney General or unit counsel for approval as to legality; (2) submitting the proposed re gulation to the General Assembly's Joint Committee on Administrative, Executive, and Legislative Review (AELR Committee) at least 60 days prior to its adoption; (3) publishing the proposed regulation in the Maryland Register at least 45 days prior to its adoption; nor did it (4) after adopting the Execution Protocol, submit the full text of the regulation to the Admini strator of the Division of State Documents for publication in the Maryland Register and the Code of Maryland Regulations (COMAR). Per the APA, a regulation is not effective until each of those requirements has been met.
16

Claim E. 55. Plaintiff incorporates paragraphs 1-54 by reference. 56. The defendants intend to administer to Plaintiff chemica ls in a manner that will cause unnecessary pain and the prolonged suffering in the execution of a sentence of death, thereby depriving Plaintiff his rights under the Eighth and Fourteenth Amendments to be tree from cruel and unusual punishment.
Claim F. 57 . Plaintiff incorporates paragraphs 1-56 by reference. 58. The defendants intend to administer to Plaintiff chemicals in a manner that will cause unnecessary pain and the prolonged suffering in the execution of a sentence of death, thereby depriving Plaintiff his right to be free from cruel and unusual punishment under Articles 16, 21 , 23, 24 , and 25 of the Maryland Declaration of Rights.
Claim G. 59. Plaintiff incorporates paragraphs 1-58 by reference. 60. The usage of pavu!on (pancurium bromide) does not conform with evolving standards of decency, and. thereby, violates the Eighth and Fourteenth Amendments to the United States Constitution.
Claim H. 61. Plaintiff incorporates paragraphs 1-60 by reference. 62. The usage of pavulon (pancurium bromide) does not conform with
17

evolving standards of decency, and, thereby, viola tes Articles 16, 21, 23, 24 , 25 of

th e Maryland Declaration of Righ ts.

Claim I.

63. Plaintiff incorporales paragraphs 1-62 by reference.

64. Defendanls' "Execution Procedures" and the chemicals Maryland uses

in lethal injeclion create an unacceptable risk of unnecessary pain and prolonged

suffering in violation of the Eighth and Fourteenth Amendmenls to the United States

Constitution.

Claim J.

65. Plaintiff incorporates paragraphs 1-64 by reference.

66. Defendants' "Execution Procedures· and the chemicals Maryland uses

in lethal injection create an unacceptable risk of unnecessary pain and prolonged

suffering in violation of Articles 16, 21, 23, 24, 25 of the Maryland Declaration of

Righ ts.

VII. Prayer for Relief

67. Plaintiff requests an immediate, emergency hearing on this Complaint.

68. Plaintiff requests thatlhis Court grant a temporary restraining order and

preliminary injunclion barring defendants from executing Plaintiff in the manner they

currently intend. 69. Plaintiff requests tha t this Court enter a declaratory judgment to the effect

Ihalthe Department of Corrections "Execution Procedures' violate Md. Code Ann.,

18

Corr. Serv., § 3-905. 70. Plaintiff requests that this Court enter a declara tory judgment to the effect
that the Department of Corrections "Execution Procedures" constitutes an improper delegation of legislative authority.
71. Plaintiff requests that this Court enter a declaratory judgment to the effect that the Defendants' "Execution Procedures" were adopted in contravention of the APA and are therefore null and void .
72. Plain tiff requests that this Court enter a declaratory judgment to the effect that Maryland's lethal injection process (not letha l injection on its face) violates the Eighth Amendment prohibi tion of cruel and unusual punishment, as well as Articles 16, 21 , 23 , 24, and 25 of tile Maryland Declaration of Rights.'
73. Plaintiff reques ts that this Court grant reaso nable attorneys' fees and any further relief that this Court deems just and proper.
R"""I!olly submitted,
Assigned Public Defender Lawlor & Englert, LLC 6305 Ivy lane Suite 704 Greenbelt, MD 20770
• Plaintiff also refers this Court to the accomparJying Memorandum of Law in Support of this Complaint.
19

301.474.3404 Assigned Public Defender La . Bar Roll # 27859 3209 Evergreen Avenue Baltimore, MD 21214 410 .790 .25 74 Admitted pro hac vice
20

CERTIFICATE OF SERVICE I hereby certify that on this 28th day of November, 2005, the foregoing Complaint was mailed or otherwise delivered to Scott S. Oakley, Esq uire, Assistant Attorney General, Office of the Attorney General, Department of Public Safety and Correctional Services, 6776 Reiserstown Road , Baltimore, Maryland 21215 , S. Ann Brobst, Esquire , Assistant State's Attorney for Baltimore Cou nty, 401 Bosley Avenue, County Cour1s Building,S'" Floor, Towson , Maryland 21204 , and to Annabelle Lisic, Esquire, Office of the Attorney General , Criminal Appeals Division, 200 Saint Paul Place , Baltimore, Maryland 21202 .
21

VERIFICATI ON I, Michael E. Lawlor, hereby declare: 1, I am a member of the State Bar of Maryland and am admitted to practice before the United States District Court for the District of Maryland, United States District Court for the District of Columbia, the United States Court of Appeals for the Fourth Circuit and the United States Court of Appeals for the District of Columbia Circuit. 2. I have reviewed the foregoing complaint. t have persona l knowledge of the matters set forth in the complaint, except as otherw-ise indicated, and could and would compe tently testify to them if called upon to do so. I veri fy that all of the alleged facts that are not otherw-ise supported by citations to the records or declarations attached to the complain t are true and correct to my own knowledge, except as to any matters stated in it on information and belief, whi ch I am informed and believe are true and correct. I declare under penalty of perjury under the laws of the State of Maryland and the United States of America th at the foregoing is true and correct.
",,,y'oe,', Executed on November 28, 2005, in Gce.ecb"It,
22

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

WESLEY EUGENE BAKER

*

Plaintiff

*

v.

*

MARY ANN SAAR, SECRETARY, et al *

Defendants

*

Civil Action No. 1:05-cv-03207

MOTION TO REMAND

Plaintiff, Wesley Eugene Baker, hereby moves this Honorable Court, pursuant to 28 U.S.C.
§ 1367(c), to remand this action to the Circuit Court for Baltimore City, Maryland, for a
determination as to whether the claims already presented in that forum merit relief under state court
statutes and caselaw. Plaintiff states the following in support thereof:
INTRODUCTION
1. Before turning to the specific provisions of law which the Defendants cite in support
of their contention that Plaintiff’s action should be heard by this Honorable Court, it should first be
bourne in mind that:
[b]ecause removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S. Ct. 868, 872, 85 L. Ed. 1214 (1941). Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court. See Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (citing Boyer v. Snap-on Tools Corp., 913 F.2d 108 (3d Cir. 1990); Coker v. Amoco Oil Co., 709 F.2d 1433 (11th Cir. 1983)). A presumption in favor of remand is necessary because if a federal court reaches the merits of a pending motion in a removed case where
-1-

subject matter jurisdiction may be lacking it deprives a state court of its right under the Constitution to resolve controversies in its own courts. University of S. Alabama v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). Or, to put it another way, "By narrowly construing removal statutes, federal courts preserve the independence of state governments." Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1045 (2d Cir. 1991). 2. Against this general backdrop, in “determin[ing] whether the case should be remanded [to state court], the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997) (accord B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)). 3. Plaintiff’s state court motion “touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open. Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy.” Railroad Com. of Texas v. Pullman Co., 312 U.S. 496, 498 (1941). 4. It should also be remembered that in the death penalty context, the United States Supreme Court has said time-and-time again that the implementation is to be left to the states. This is, at least in part, due to the fact that each state does it differently. Utah retains the possibility of a firing squad, and Alabama has the electric chair. The highest court in the land has made it clear that so long as the process falls within the broad parameters it has laid down, the death penalty is primarily a state issue. The enactment by Congress of the AEDPA in 1996 significantly curtailed the review conducted by Federal courts in the death penalty context again, presumably, because it is an issue that should primarily left up to the states - - and the state courts. At the habeas level the
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Federal courts consider only whether a state court’s action is “contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.” The march, therefore, is towards allowing the state to determine which of its citizenry is eligible for death, and the manner in which the penalty should be effected.
5. It would be a reversal of this trend for this Court to pass judgment on state law claims, particularly in light of the fact that Defendants have not suggested that an adequate state forum exists. This issue is premature until such times as the courts of Maryland have determined the laws of Maryland. Comity dictates that this Court show restraint.
6. The Defendants claim that jurisdiction vests in this Honorable Court “pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). This action is therefore subject to removal to this Court pursuant to 28 U.S.C. §§ 1441(b) and (c). This Court has supplemental jurisdiction of the state law claims pursuant to 28 U.S.C. § 1367(a).”
7. Taking each component of the Defendant’s statements in turn: 28 U.S.C. § 1331
8. This provision states that “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 Certainly the Plaintiff has no quarrel with this: it is the federal courts that should decide Federal questions of law. The problem, however, is that only a small portion of Plaintiff’s case rests on the Constitution, and not even a smidgeon of it relies on the laws or treaties of the United States. As Defendants acknowledge, the only conceivable Federal basis upon which Plaintiff’s claim rests is “cruel and unusual” under the Eighth Amendment and it’s applicability to the states through the Fourteenth Amendment.
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9. A closer look at Plaintiff’s state court complaint, however, evinces that his Eight
Amendment claim is only one facet of Plaintiff’s case. Indeed, it is noteworthy that the first
substantive area of law briefed by Plaintiff is that
administrative regulations cannot contradict state statutes nor can administrative agencies disregard a statute. Further, an executive agency may not adopt regulations without following the strict procedures prescribed by this State’s Administrative Procedure Act (APA). Prior to adopting the Execution Protocol utilized by the Division of Correction (DOC) to carry out the legislative mandate contained in Md. Code Ann., Corr. Serv. §3-905, the Department of Public Safety and Correctional Services (DPSCS), the umbrella agency covering the DOC, was required to submit the protocol to the Attorney General or unit counsel for approval as to its legality, submit the proposed regulation to the General Assembly’s Joint Committee on Administrative, Executive, and Legislative Review (AELR Committee) at least 60 days prior to its adoption, publish the proposed regulation in the Maryland Register at least 45 days prior to its adoption, and, after adopting the Execution Protocol, submit the full text of the regulation to the Administrator of the Division of State Documents for publication in the Maryland Register and the Code of Maryland Regulations (COMAR). Defendants did none of these things. Instead, the document utilized to take human life was drafted in complete secrecy.
Also, by failing to abide by Md Code Ann., Correctional Services § 3-905 in carrying out executions, the Department of Corrections is in violation of state law, and also in violation of the doctrine of separation of powers as the “Execution Procedures” constitute an illegal exercise of administrative authority. Quite naturally, and per the APA, an executive agency may not regulate beyond their legislative grant of authority.
Plaintiff led off with his strongest argument, and it did not in any way, shape, or form include
a claim of Constitutional proportions. Similarly when the reader gets to the section entitled
argument there, front and center, is the APA argument.
10. On the first occasion that Plaintiff does discuss the Eighth Amendment he includes a
footnote which states that “ The portions of the Maryland Declaration of Rights dealing with cruel
and unusual punishment have been interpreted to mean the same as the Eighth Amendment
prohibition of cruel and unusual punishment. Aravanis v. Somerset County, 339 Md. 644, 656, 664
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A.2d 888, 894 (1995).” Clearly, therefore, Plaintiff makes no claim specific to the rights afforded him by the United States but, rather, he makes a claim that sits equally well in state or federal court.
28 U.S.C. § 1343(a)(3) 11. This section is entitled “Civil Rights and Elected Franchise,” and it states, in relevant part that “[t]he district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . . to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.” This section is manifestly inapposite to the Maryland Administrative Procedures Act, upon which a substantial part of Plaintiff’s claim rests. 12. Further, there is no conceivable basis upon which Defendants can maintain that there is somehow a common nucleus of operative fact. Plaintiff’s APA claim rests on whether a state regulation was correctly enacted, and whether it is correctly followed as it pertains to the number of drugs and the continuous nature of their administration. It is plainly a matter of state law. Plaintiff’s Eighth Amendment claim concerns whether he will be tortured to death. In Maryland, its Declaration of Rights provisions as they pertain to cruel and unusual have been determined to mirror the Eighth Amendment. As such, Plaintiff’s complaint primarily concerns matters of state law.
28 U.S.C. § 1367(a) 13. This statute states, in relevant part, that:
except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of
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the United States Constitution. While sub-paragraph (b) is not directly on point, sub-paragraph (c) requires that: The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if–
(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. What the U.S. Supreme Court interprets this to mean is that “the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’” United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). 14. An interesting parallel is Doe v. Sundquist, 106 F.3d 702 (6th Cir. 1997). In that case the court declined to exercise supplemental jurisdiction, holding that it “decline[d] to exercise supplemental jurisdiction, finding that at least one of the § 1367(c) factors applies, namely, subsection (c)(1).” Id. at 708. In determining that a novel issue of state law was involved, the court considered a statute enacted six months prior in the state which “[t]he plaintiffs allege that the statute violates both the U.S. Constitution and the Tennessee Constitution.” Id. at 704. (Emphasis supplied). The appellate court frankly observed that “[t]his case would have been better brought in state court in the first place, and we deem it prudent to allow the Tennessee courts to decide the purely state law issues.” Id. at 708. 15. As stated in Plaintiff’s Memorandum of Law at the state court, Massey v. Secretary, is but nine (9) days old. There are few, if any, practitioners before the courts of Maryland that have
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yet to fully comprehend its import. In short: Plaintiff’s claim foresquarely “raises a novel [and] complex issue of state law.” Moreover, Plaintiff’s argument at the state court was that “[t]he Execution Protocol is a regulation that must be adopted per the APA. As it was not, a declaratory judgment should be entered in Plaintiff’s favor.” This is purely a question of state law. Accordingly, the first prong of Plaintiff’s argument predominates (the APA claim) and if he is successfully the adjudicator never gets to the second prong. Plaintiff’s‘cruel and unusual punishment’ claim rests on terra firma whether it is couched in terms of the U.S. Constitution, or the Maryland declaration of rights.
16. Plaintiff also reminds this Honorable Court that it is his position that the Department of Corrections has created legislation, thereby violating the separation of powers. While Federal courts should always be wary of invading the provinces of the states, this is never more true than when referring to state intergovernment conflicts. As one court put it:
Counts Six and Seven of the Sixth Amended Complaint charge violations of State law. Hallco charges that the County is usurping the legitimate authority of the [Texas National Resource Counsel] and also violating a provision of the Texas Government Code. Even if the Court retains any federal claim, a federal court should be slow to entertain state claims of this kind. See Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993) (affirming dismissal of pendent state law claim involving state election laws). They raise the question of intergovernmental state conflicts and novel questions of state law that are much more appropriately addressed by a state court. Guided by 28 U.S.C. § 1367(c)(1), the Court is inclined to decline supplemental jurisdiction over these state court claims, especially since a parallel state court suit exists.” Hallco Tex. v. McMullen County, 934 F. Supp. 238, 242 (D. Tex. 1996); affd without op., 109 F3d 768 (5th Cir. 1997) (emphasis supplied).
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CONCLUSION 17. “The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court. The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication.” Railroad Com. of Texas v. Pullman Co., 312 U.S. 496, 500 (1941). 18. A compelling reason exists to allow the state court to hear this matter, and it would be manifestly unjust if this Honorable Court told the State of Maryland how to interpret its laws before giving it a chance to do so. Comity dictates that Plaintiff be allowed to exhaust his state court claims prior to any hearing by the Courts of the United States.
Respectfully submitted,
___________/s/_____________ MICHAEL E. LAWLOR Assigned Public Defender Lawlor & Englert, LLC 6305 Ivy Lane Suite 704 Greenbelt, Maryland 20770 301.474.3404
____________/s/____________ GARY E. PROCTOR Assigned Public Defender Admitted pro hac vice 3209 Evergreen Ave Baltimore, Maryland 21212 410-790-2574
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____________/s/____________ GARY W. CHRISTOPHER (#24215) Chief Assistant Federal Public Defender 100 S. Charles Street Tower II, Suite 1100 Baltimore, MD 21201 (410) 962-3962 fax - (410) 962-0872
____________/s/____________ FRANKLIN W. DRAPER (#26316) Assistant Federal Public Defender 100 S. Charles Street Tower II, Suite 1100 Baltimore, MD 21201 (410) 962-3962 fax - (410) 962-0872
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 30th day of November, 2005, a copy of the foregoing Motion was mailed, first-class postage prepaid, to Scott S. Oakley Esq., Assistant Attorney General, Maryland Department of Safety and Correctional Services, 6776 Reiserstown Road, Suite 313, Baltimore MD 21215.
_____________s/s______________________ MICHAEL E. LAWLOR
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

WESLEY EUGENE BAKER,

*

Plaintiff,

*

v.

* Civil Action No. WDQ-05-3207

MARY ANN SAAR, SECRETARY, et al., *

Defendants.

*

DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTION

Defendants Mary Ann Saar, Secretary of the Maryland Department of Public

Safety and Correctional Services, Frank C. Sizer, Jr., Commissioner of the Maryland

Division of Correction, Lehrman Dotson, Warden of the Maryland Correctional

Adjustment Center, and Gary Hornbaker, Warden of the Metropolitan Transition Center,

by their attorneys J. Joseph Curran, Jr., Attorney General of Maryland, and Scott S.

Oakley, Assistant Attorney General, oppose Plaintiff’s Motion for Temporary Injunction,

and as the grounds and authorities in opposition thereto Defendants state the following:

BACKGROUND

On October 26, 1992, Plaintiff Baker was found guilty by a jury in the Circuit Court for Harford County, Maryland, of the first-degree murder of Jane Frances Tyson, the robbery of Mrs. Tyson with a deadly weapon, and the use of a handgun in the commission of a felony. On October 30, 1992, the court sentenced Baker to death for his conviction of murder, to twenty years’ incarceration for robbery with a deadly weapon, and to twenty years’ incarceration for the use of a handgun in the commission of a felony.

1

The Maryland Court of Appeals affirmed Baker’s convictions and sentence of death on direct appeal. Baker v. State, 332 Md. 542 (1993), cert. denied, 511 U.S. 1078 (1994).
On December 3, 1994, Baker filed his first petition for post conviction relief. An evidentiary hearing on this petition was conducted by Judge Maurice Baldwin of the Circuit Court for Harford County on July 6 and 7, 1995. Judge Baldwin subsequently denied post conviction relief in a written opinion on July 17, 1995, and in a supplemental denial filed on August 15, 1995. Baker then filed an application for leave to appeal in the Maryland Court of Appeals, which was declined on November 7, 1995. On April 29, 1996, the United States Supreme Court denied Baker’s petition for writ of certiorari seeking review of the denial of post conviction relief. Baker v. Maryland, 517 U.S. 1169 (1996).
On October 21, 1996, Baker filed a petition to reopen post conviction proceedings, and a second petition for post conviction relief. On December 16, 1996, Judge Baldwin held a non-evidentiary hearing, and on December 18, 1996, he denied the relief sought. Baker subsequently filed an application for leave to appeal in the Maryland Court of Appeals, which was again denied on March 7, 1997.
Baker also filed a petition for writ of habeas corpus in this U.S. District Court. Baker’s petition was denied by this Court on June 29, 1999. The United States Court of Appeals for the Fourth Circuit affirmed the District Court’s rulings, and on February 26, 2001, the United States Supreme Court denied Baker’s petition for writ of certiorari. Baker v. Corcoran, 531 U.S. 1193 (2001).
On March 9, 2001, and again on March 22, 2001, Baker filed motions in the Circuit Court for Harford County asking for a new sentencing on the basis of newly discovered evidence, a claim that his sentence was illegal, and a claim that the indictment
2

was defective for failure to allege principalship and aggravating factors. These motions were denied on April 2, 2001. Baker noted an appeal and the Maryland Court of Appeals affirmed the rulings of the circuit court. Baker v. State, 367 Md. 648, cert. denied, 535 U.S. 1050 (2002).
On March 28, 2001, Baker filed a second motion to reopen post conviction proceedings. One basis for relief was Baker’s claim that his death sentence was a result of racial discrimination and was imposed “under the influence of passion, prejudice, and other arbitrary factors within the meaning of [Md. Code Ann. Art. 27 §414(e)(1)].” Petition for Post Conviction Relief at 11. Baker’s motion was denied on April 9, 2002. Baker’s application for leave to appeal was thereafter denied by the Maryland Court of Appeals on May 2, 2002. Baker v. State, Misc. No. 41, September Term, 2002.
On May 13, 2002, Baker noted an appeal, which was subsequently transferred to the Court of Appeals, in connection with Judge Turnbull’s decision declining to quash Baker’s death sentence for lack of jurisdiction by the trial judge. The Maryland Court of Appeals affirmed Judge Turnbull’s decision. Baker v. State, 377 Md. 567 (2003).
On October 21, 2003, Baker filed a motion to correct an illegal sentence based on Ring v. Arizona, 536 U.S. 584 (2002). The trial court ultimately denied Baker’s motion on December 18, 2003, and the Maryland Court of Appeals affirmed that denial. Baker v. State, 383 Md. 550 (2004), cert. denied, 125 S.Ct. 1931 (2005).
Baker then filed his third petition for post conviction relief, and a third petition to reopen post conviction proceedings; these petitions were denied by the Circuit Court for Harford County on November 18, 2004. On January 11, 2005, the Maryland Court of Appeals denied Baker’s application for leave to appeal the denial of his motion to reopen post conviction proceedings in order to litigate his racial/geographic disparity claim
3

based on the University of Maryland “Paternoster Study.” Baker noted an appeal to the Maryland Court of Appeals from the denial of the motion to correct an illegal sentence raising the same issue, and that Court affirmed the holding of the lower court. Baker v. State, Md. , No. 132, September Term, 2005 (filed October 3, 2005). The Court’s mandate issued on November 2, 2005.
On October 25, 2005, Baker filed a fourth petition for post conviction relief and a fourth petition to reopen post conviction based on the same racial disparity claim, together with a motion to correct an illegal sentence, claiming that under Ring the capital murder indictment was defective. On November 14, 2005, the Circuit Court for Harford County denied each of Baker’s motions.
On November 3, 2005, Maryland Governor Ehrlich issued an execution warrant for Baker, specifying the five-day period beginning at 12:01 a.m. on Monday, December 5, 2005.
On November 7, 2005, Baker filed an Emergency Motion for Stay of Execution of Death Sentence in the Circuit Court for Harford County. That motion was denied by that court on November 14, 2005.
On November 23, 2005, the Maryland Court of Appeals summarily rejected all of Baker’s appeals and applications then pending before that Court, including an Emergency Motion for Stay of Execution.
Baker filed this civil action on November 28, 2005. BAKER’S MOTION FOR TEMPORARY INJUNCTION SHOULD BE DENIED BECAUSE HIS ABUSIVE DELAY DEFEATS HIS DEMAND FOR EQUITABLE RELIEF
Baker’s challenge to lethal injection could have been brought at least a decade ago. Lethal injection has been an authorized method of execution in Maryland since
4

March 25, 1994. See 1994 Md. Laws, Ch. 5. Four Maryland inmates have been executed by lethal injection, including Steven Oken just last year. At the very least, Baker has been aware of Maryland’s use of lethal injection since being given notice through his attorney on March 30, 1994, advising that pursuant to 1994 Md. Laws, Ch. 5 any execution of Baker’s sentence of death “will be by lethal injection unless he elects on or before May 24, 1994 a lethal gas execution.” Indeed, by his silence following receipt of this notice, Baker should be deemed to have waived any objection he may have to execution by lethal injection. Orbe v. Johnson, 601 S. E. 2d 547, 549 ( Va. 2004) (relying on Stewart v. LeGrand, 526 U.S. 115, 199 (1999) to find, on appeal from dismissal of action for declaratory judgment and preliminary injunction, that challenge to lethal injection was waived where petitioner allowed statutory default provision to determine that he would be executed by lethal injection rather than by electrocution).
Legal challenges to lethal injection are nothing new; they have been repeatedly raised and uniformly rejected for nearly two decades. See Heckler v. Chaney, 470 U.S. 821, 823 (1985) (rejecting a civil claim that the drugs used for execution by lethal injection were not properly tested and were likely to be administered by untrained personnel); Woolls v. McCotter, 798 F.2d 695, 697-98 (5th Cir.) (rejecting a claim that the administration of sodium thiopental by untrained personnel in improper dosage violates the Eighth Amendment), cert. denied, 478 U.S. 1032 (1986); State v. Moen, 786 P.2d 111, 143 (Or. 1990) (rejecting a claim that the chemicals used by the state violated the Eighth Amendment); Hill v. Lockhart, 791 F. Supp. 1388, 1394 (E.D. Ark. 1992) (rejecting a claim that potential difficulty in locating a vein suitable for lethal injection would amount to cruel and unusual punishment); State v. Deputy, 644 A.2d 411, 420 (Del. 1994) (rejecting a claim that the state’s procedures for lethal injection were
5

unconstitutional for failing to provide appropriate selection and training of persons administering lethal injection); State v. Hinchey, 890 P.2d 602, 610 (Ariz. 1995) (rejecting a claim that lethal injection is unconstitutional because it could be painful if carried out incorrectly); State v. Webb, 750 A.2d 448, 453 (Conn.) (rejecting a claim that lethal injection creates a “high risk” that the inmate will experience “excruciating pain” because the execution protocol does not ensure that a sufficient amount of thiopental sodium will be administered to render the inmate unconscious), cert. denied, 531 U.S. 835 (2000); Sims v. State, 754 So. 2d 657 (Fla.) (rejecting a claim that the lack of specific guidelines controlling the dosage, sequence, and delivery rates of lethal chemicals would violate the Eighth Amendment), cert. denied, 528 U.S. 1183 (2000); Cooper v. Rimmer, 379 F.3d 1029, 1030-33 (9th Cir. 2004) (per curiam) (rejecting a claim of alleged deficiencies in California’s protocol, a challenge to the use of pancuronium bromide, and a claim that personnel were not adequately trained to carry out the protocol).1
Despite nearly two decades of legal precedent identifying the issues arising in challenges to execution by lethal injection, Baker has failed to raise his own challenge to Maryland’s use of lethal injection until the eleventh hour -- less than one week before his scheduled execution. Baker cannot hide behind the excuse that he previously did not know of, or only recently obtained information about, Maryland’s lethal injection procedures and protocols.
The U.S. Supreme Court decision in Nelson v. Campbell, 124 S. Ct. 2117 (2004) is instructive. Three days before his scheduled execution by lethal injection, Alabama
1 Relying on the eleventh-hour nature of Cooper’s case, the lower court in Cooper had denied motions for a temporary restraining order and a preliminary injunction, as well as a motion for expedited discovery. 379 F.3d at 1031.
6

death-row inmate David Nelson filed a §1983 civil rights action in federal district court
alleging that the use of a “cut-down procedure” to access his veins would constitute cruel
and unusual punishment and deliberate indifference to his serious medical needs in
violation of the Eighth Amendment. 124 S. Ct. at 2121. Nelson sought a permanent
injunction against use of the cut-down procedure, a temporary stay of execution to allow
the federal district court to consider the merits of his claim, an order requiring that he be
furnished a copy of the protocol setting forth the medical procedures to be used to gain
venous access, and an order directing the promulgation of a venous access protocol that
would comport with contemporary standards of medical care. Id. According to an
affidavit from Dr. Mark Heath accompanying Nelson’s complaint, safer and less-invasive
contemporary means of venous access existed. Id.
While the Supreme Court held that Nelson had stated a cognizable claim under 42
U.S.C. §1983, id. at 2120, the Court underscored the notion that an eleventh hour attempt
by a death-row inmate to manipulate the criminal justice system in order to secure a delay
in his execution should not be countenanced:
[A]s our previous decision in Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam), makes clear, the mere fact that an inmate states a cognizable §1983 claim does not warrant the entry of a stay as a matter of right. Gomez came to us on a motion by the State to vacate a stay entered by an en banc panel of the Court of Appeals for the Ninth Circuit that would have allowed the District Court time to consider the merits of a condemned inmate's last-minute §1983 action challenging the constitutionality of California's use of the gas chamber. We left open the question whether the inmate's claim was cognizable under §1983, but vacated the stay nonetheless. The inmate, Robert Alton Harris, who had already filed four unsuccessful federal habeas applications, waited until the 11th hour to file his challenge despite the fact that California's method of execution had been in place for years: “This claim could have been brought more than a decade ago. There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the
7

judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” Id., at 654, 112 S.Ct. 1652.
A stay is an equitable remedy, and “[e]quity must take into consideration the State's strong interest in proceeding with its judgment and ··· attempt[s] at manipulation.” Ibid. Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, see Blodgett, 502 U.S. at 239, 112 S.Ct. at 674; McCleskey, 499 U.S. at 491, 111 S.Ct. at 1454, there is 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.
124 S. Ct. at 2125-26.
Any doubt that the Supreme Court meant what it said when it harkened back to its
decision in Gomez is dispelled by the Court’s actions both before and after its decision in
Nelson, including its lifting of a stay granted by this Court (Messitte, J.) two days before
Maryland’s last execution -- that of Steven Oken. See Sizer v. Oken, 542 U.S. 916 (June
16, 2004). Other condemned inmates like Baker, who would not be subjected to a cut-
down procedure and who brought eleventh hour challenges, of the kind Baker raises here,
to their state’s lethal injection procedures were denied stays of execution by the U.S.
Supreme Court, or had stays of execution issued by lower courts vacated by the Supreme
Court. See Beardslee v. Woodford, 125 S. Ct. 982 (January 18, 2005)(stay of execution in
California denied); Aldrich v. Johnson, 125 S. Ct. 347 (October 12, 2004)(stay of
execution in Texas denied); Harris v. Dretke, 542 U.S. 952 (June 30, 2004)(stay of
execution in Texas denied); Orbe v. True, 541 U.S. 970 (March 31, 2004)(stay of
execution in Virginia denied); Ozmint v. Hill, 541 U.S. 929 (March 19, 2004)
(preliminary injunction enjoining execution in South Carolina vacated); Robinson v.
8

Crosby, 540 U.S. 1171 (February 4, 2004)(stay of execution in Ohio denied); Roe v. Taft, 540 U.S. 1171 (February 4, 2004)(stay of execution in Ohio denied); Vickers v. Johnson, 540 U.S. 1170 (January 28, 2004)(stay of execution in Texas denied); Zimmerman v. Johnson, 540 U.S. 1170 (January 21, 2004)(stay of execution in Texas denied); Bruce v. Dretke, 540 U.S. 1146 (January 14, 2004)(stay of execution in Texas denied); Ward v. Darks, 540 U.S. 1146 (January 13, 2004)(stay of execution in Oklahoma vacated); Williams v. Taft, 540 U.S. 1146 (January 13, 2004)(stay of execution in Ohio denied); Beck v. Rowsey, 540 U.S. 1098 (January 8, 2004)(stay of execution in North Carolina vacated).
Instructive on the issue of delay is the reasoning of the United States Court of Appeals for the Fifth Circuit in Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004)(per curiam). In that case, the federal district court had granted injunctive relief to Harris on the basis of his §1983 claim challenging the method in which his execution was to be carried out. Id. at 416. That claim was presented to the district court for the first time 18 years after his capital murder conviction and death sentence. Id. The Fifth Circuit vacated the temporary restraining order and dismissed Harris’s complaint. Id. at 419.
The court cited the statement in Nelson that “[a] court may consider the last minute nature of an application to stay execution in deciding whether to grant equitable relief.” Id. at 417 (quoting Nelson, 124 S. Ct. at 2126). The court determined that Harris was not entitled to equitable relief:
Harris has been on death row for eighteen years, yet has chosen only this moment, with his execution imminent, to challenge a procedure for lethal injection that the state has used for an even longer period of time. Unlike the plaintiff in Nelson--who challenged a procedure that had been newly instituted to address his unique medical condition--Harris cannot excuse his delaying until the eleventh hour on the ground that he was unaware of the
9

state’s intention to execute him by injecting the three chemicals he now challenges.

Id. (footnote omitted). The court rejected all of Harris’s rationales for delaying the filing
of the claim. First, in response to Harris’s argument that there was no reason to challenge
the method of execution until all of his direct appeal and collateral challenges were
resolved against him, the court pointed to the admonition in Gomez that a defendant is not
entitled “to wait until his execution is imminent before suing to enjoin the state’s method
of carrying it out.” Id. Referring to the brief time between a final denial of certiorari and
the setting of an execution date, the court stated as follows:
By waiting until the execution date was set, Harris left the state with a Hobbesian choice: It could either accede to Harris’s demands and execute him in the manner he deems most acceptable, even if the state’s methods are not violative of the Eighth Amendment; or it could defend the validity of its methods on the merits, requiring a stay of execution until the matter could be resolved at trial. Under Harris’s scheme, and whatever the state’s choice would have been, it would have been the timing of Harris’s complaint, not its substantive merit, that would have driven the result.

*

*

*

This is an untenable position in which to place the state. For the entirety of his eighteen years on death row, Harris knew of the state’s intention to execute him in this manner. It was during that period--in which the execution was not so much an imminent or impending danger as it was an event reasonably likely to occur in the future--that he needed to file this challenge. By waiting as long as he did, Harris leaves little doubt that the real purpose behind his claim is to seek a delay of his execution, not merely to effect an alteration of the manner in which it is carried out.

Id. at 417-18 (footnote omitted). Second, “[t]he fact that Harris was challenging his conviction on direct and
collateral appeal has no bearing on his right to use §1983 as a vehicle for challenging the conditions of his confinement, because the two claims can proceed parallel to one

10

another.” Id. at 418. Third, reliance on a Fifth Circuit decision in 2002 did not excuse a
late filing, “so it provides no explanation, let alone excuse, for Harris’s refusal to bring this claim for the overwhelming amount of his lengthy stay on death row.” Id. at 419.
Finally, the court discounted Harris’s argument that an Eighth Amendment method of
execution claim can never be considered dilatory because of the evolving view of society
relative to capital punishment. Id. Although we have ample reason to doubt whether societal standards of decency have evolved to the point at which Harris claims them to be, he could have chosen to take advantage of the legal procedures offered by a similarly mature and tolerant society just a few years ago. Had he done so, Harris would have had an opportunity to proceed to an adjudication of his claims on the merits. Having chosen instead to litigate this issue in the final days before the state carries out his execution, his suit can serve no purpose but to further delay justice that is already eighteen years in the making.
Id. (footnote omitted). The United States Supreme Court denied Harris’s subsequent
application for a stay of execution on June 30, 2004, and Harris was executed later that day. See also White v. Johnson, F.3d , 2005WL2857456 *1 (5th Cir. Tex.)(Nov. 1,
2005)(per curiam)(denying equitable relief where defendant was dilatory in filing his
claim); Reid v. Johnson, 333 F.Supp.2d 543, 554 (4th Cir. Va. 2004)(petitioner’s 4-year
delay in filing lethal injection claim “is of significant magnitude in and of itself to foreclose any claim to equity”).
There is no reason for this Court to treat Baker differently. Baker was sentenced
to death in October of 1992. Like the complainants in Gomez and Harris, Baker could have brought his action challenging lethal injection at least a decade ago. It would be
grossly unfair to the State to permit expedited litigation on a claim that could have been
raised long before now. Baker’s rights have been the focus of litigation in which the
fairness of his trial and validity of his convictions and sentence have been examined and
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repeatedly upheld in State and federal court. If Baker had genuine concern regarding the legality of his execution by lethal injection, he would have sought relief as soon as he became aware that he was subject to that method of execution. Instead, although well aware of his claim, and having seen at close hand the futility of late filings in the Steven Oken case just 17 months ago, Baker deliberately chose to wait until the week before his execution to file suit in the hope of obtaining the equivalent of a stay of execution at the last minute. This Court should not be persuaded by Baker’s attempt to manipulate the judicial system and avoid the sentence he received 13 years ago.
In sum, given Baker’s undue delay in bringing his lethal injection challenge, there is an overwhelming equitable presumption against the relief Baker seeks. That Baker’s substantive claims lack merit, all as more particularly discussed hereafter, is yet further reason to deny Baker’s request for relief.
ALTERNATIVELY, BAKER’S MOTION FOR TEMPORARY INJUNCTION SHOULD BE DENIED ON THE MERITS
To obtain preliminary injunctive relief under F.R.Civ.P. 65, a party must demonstrate: 1) the likelihood he will be irreparably harmed if the preliminary injunction is denied; 2) the likelihood that the opposing party will not be harmed if the requested relief is granted; 3) the likelihood the moving party will succeed on the merits; and 4) that the public interest will be served if the injunction is granted. Blackwelder Furniture Co. v. Selig Manufacturing Co., 550 F.2d 189, 195-96 (4th Cir. 1977). Accord Ciena Corp. v. Jarrard, 203 F.3d 312, 322-23 (4th Cir. 2000).
The less the balance of hardships favors the plaintiff, the greater must be the showing of likelihood of success on the merits. Direx Israel, Ltd. v. Breakthrough
12

Medical Corp., 952 F.2d 802, 813 (4th Cir. 1991). To be irreparable, the harm must be “neither remote nor speculative, but actual and imminent.” Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)(citation omitted).
With respect to the likelihood of harm to the defendants, the public has an interest in state criminal sanctions being administered by the persons authorized to do so because of their training and experience, not by the federal courts. See Taylor v. Freeman, 34 F.3d 266, 268 (4th Cir. 1994)(“It is well established that absent the most extraordinary circumstances, federal courts are not to immerse themselves in the management of state prisons or substitute their judgment for that of the trained penological authorities charged with the administration of such facilities.”)
Since the enactment of the Prisoner Litigation Reform Act in 1995 (if not before, see Lewis v. Casey, 518 U.S. 343, 354 (1996)(vacating system-wide injunction relating to provision of legal materials and services in absence of actual deprivation of access except in isolated cases); Taylor v. Freeman, 34 F.3d at 269 (decrying breadth and detail of injunctive relief based on insufficient preliminary findings of violations and without giving prison officials first opportunity to craft remedy)), federal courts issuing injunctive relief in prisoner cases have been under the additional requirement that they “shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of a Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1) & (2). Under the PLRA, federal courts are prohibited from becoming involved in the actions of the state’s correctional system absent compelling
13

reasons. A court considering whether to grant injunctive relief in a prisoner case must give substantial weight to any adverse impact on public safety or the operation of the criminal justice system. Id. at § 3626(a)(1) & (2).
Last, but by no means least, and as more fully argued above, the Supreme Court has reiterated that the last-minute nature of a request for a stay of execution is a factor to be considered in determining whether to grant that particular form of equitable relief. The Court also reiterated that the state has a significant interest in enforcing its criminal judgments, creating 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.” Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117 (2004).
Baker argues that he is entitled to preliminary injunctive relief upon a number of federal and state law claims. These claims will be addressed in turn. BAKER’S CLAIM THAT THE EXECUTION WILL CONSTITUTE CRUEL AND
UNUSUAL PUNISHMENT IS WITHOUT FACTUAL BASIS The Eighth Amendment prohibits punishments that involve "'unnecessary and wanton inflictions of pain,'" Estelle v. Gamble, 429 U.S. 97,104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion)), or that are inconsistent with "'evolving standards of decency that mark the progress of a maturing society,’” Estelle, 429 U.S. at 102 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Executing a person is not in and of itself cruel and unusual punishment within the meaning of the Eighth Amendment: "Punishments are cruel when they involve torture or a lingering death; but
14

the punishment of death is not cruel, within the meaning of that word as used in the
Constitution. It implies something inhumane and barbarous, something more than mere
extinguishment of life." In re Kemmler,136 U.S. 436, 447 (1890).
The Eighth Amendment does require that the death penalty be performed in a
manner that avoids unnecessary or wanton infliction of pain. State of La. ex reI. Francis
v. Resweber, 329 U.S. 459, 463 (1947). Any punishment must be consistent with human
dignity and comply with current civilized standards. Trop v. Dulles, 356 U.S. at 100-01.
The method to be used in Baker's case meets this standard. Indeed, it is the method used
by the overwhelming majority of states that have capital punishment.
Thirty-seven of the thirty-eight states with the death penalty use lethal injection as
a method of execution.2 The number of states authorizing lethal injection as a method of
2 The 37 states that currently authorize lethal injection for execution are: Alabama, Ala.Code 1975 §15-18-82; Arizona, Ariz.Rev.Stat.Ann. §13-704; Arkansas, Ark.CodeAnn. §5-4-617; California, Cal.PenalCode §3604; Colorado, Colo.Rev.Stat.Ann. §16-11-401; Connecticutt, Conn.Gen.Stat. §54-100; Delaware, Del.Code Ann.tit.11, §4209(f); Florida, Fla.Stats. §922.105; Georgia, Ga.CodeAnn. §1710-38; Idaho, IdahoCode §19-2716; Illinois, Ill.St.ch. 725, §5/119-5(a)(1); Indiana, Ind.CodeAnn §35-38-6-1; Kansas, Kan.Stat.Ann. §22-4001; Kentucky, Ky.Rev.Stat. §431.220; Louisiana, La. Rev. Stat. Ann. § 15:569 B; Maryland, Md. Code Ann., Corr. § 3-905; Mississippi, Miss. Code Ann. § 99-19-51 (1972); Missouri, Mo. Rev. Stat. § 546.720; Montana, Mont. Code Ann. § 46-19-103; Nevada, Nev. Rev. Stat. § 176.355 1; New Hampshire, N.H. Rev. Stat. Ann. § 630:5 XIII.; New Jersey, N.J. Stat. Ann. § 2C:49-2; New Mexico, N.M. Stat. Ann. § 31-14-11; New York, N.Y. Correct. Law § 658; North Carolina, N.C. Gen. Stat. § 15-187; Ohio, Ohio Rev. Code Ann. § 2949.22(B)(I); Oklahoma, Okla. Stat. Ann. tit. 22 § 1014; Oregon, Or. Rev. Stat. Ann. § 137.473; Pennsylvania, Pa. Stat. Ann. tit. 61 § 3004; Maryland, S.C. Code § 24-3-530; South Dakota, S.D. Codified Laws § 23A-27 A- 32; Tennessee, Tenn. Code Ann. § 4023-114; Texas, Texas Code Crim. P. Ann. § 43.14; Utah, Utah Code Ann. § 77-18-5.5; Virginia, Va. Code § 53-1-233; Washington, Wash. Rev. Code Ann. § 10.95.180; and Wyoming, Wyo. Stat. Ann. § 7-13-904. In addition, the United States government and
15

execution has increased from twenty-two in 1992 to thirty-seven in 2002. In 1992, twothirds of the executions in the United States were by means of lethal injection. In 2002, 99% of all executions in the United States have been by means of lethal injection.3 Since the death penalty was reinstated in 1977, 80% of all executions in the United States have been by means of lethal injection (654 of 820: Bureau of Justice Statistics Bulletin, Capital Punishment 2002, Nov. 2003, NCJ201848). Recent news reports indicate that the one-thousandth lethal injection execution in the United States will likely take place before the end of this year.
the United States military also currently authorize lethal injection for executions. See 28 C.F .R. § 26.3(4); Anny Reg. 190-55.
3 Between January 1,2003 and November 7, 2003, there were 60 executions by civil authorities in the United States and 59 were by lethal injection and one by electrocution (Virginia). The states performing lethal injections during this period were: Texas (21); Oklahoma (14); North Carolina (5); Alabama (3); Florida (3); Georgia (3); Ohio (3); Indiana (2); Missouri (2); Virginia (2); Arkansas (1); Federal Government (1). Bureau of Justice Statistics Bulletin, Capital Punishment 2002, Nov. 2003, NCJ201848.
16

State and federal courts have consistently rejected challenges to lethal injection.4
These legislative and judicial determinations are evidence of society's approval of lethal
injection as an appropriate means of execution. State v. Webb, 252 Conn. at 145-46,750
A.2d at 457. "There is general agreement that lethal injection is at present the most
humane type of execution available, and is far preferable to the sometimes barbaric
means employed in the past. Many states have now abandoned other forms of execution
in favor of lethal injection.” Hill v. Lockhart, 791 F. Supp. at 1394. Indeed, medical
experts have urged that death by lethal injection is the most humane of any method of
4 Arizona: State v. Hinchey, 890 P.2d 602,610 (1995), cert. denied, 516 U.S. 993; California: People v. Snow, 30 Cal. 4th 43, 127 (2003); People v. Welch, 20 Cal. 4th 701, 770-73 (1999); People v. Fairbank, 16 Cal. 4th 1223,1255-56 (1997); People v. Holt, 15 Cal. 4th 619,702-03 (1997); People v. Bradford, 14 Cal. 4th 1005, 1058-59 (1997); Connecticut: State v. Webb, 680 A.2d 147 (Conn. 1996); State v. Webb, 252 Conn. 128, 138,750 A.2d 448 (Conn. 2000), cert. denied, 531 U.S. 835; Delaware: Dawson v. State, 673 A.2d 1186 (Del. 1996), cert. denied, 519 U.S. 844; Florida: Sims v. State, 754 So.2d 657 (Fla. 2000), cert. denied, 528 U.S. 1183; Idaho: Sivakv. State, 731 P.2d 192 (Idaho 1986); Illinois: People v. Stewart, 520 N.E.2d 348 (Ill. 1988), cert. denied, 488 U.S. 900; Indiana: Harrison v. State, 644 N.E.2d 1243 (Ind. 1995); Mississippi: Russell v. State, 849 So.2d 95, 144-45 (Miss. 2003); Carr v. State, 655 So.2d 824 (Miss. 1995), cert. denied, 516 U.S. 1076; Montana: State v. Gollehon, 864 P.2d 249 (Mont. 1993), cert. denied, 513 U.S. 827; Oklahoma: Romano v. State, 917 P.2d 12 (Ok. 1996); Oregon: State v. Moen, 309 Or. 45, 786 P.2d 111,143 (Or. 1990); South Dakota: State v. Moeller, 548 N.W.2d 465,487-89 (S.D. 1996); Texas: Ex parte Granviel, 561 S.W. 503,514 (1978) (use of sodium thiopental); Tennessee: State v. Hines, 919 S.W.2d 573,582 (Tenn. 1995), cert. denied, 519 U.S. 847; Virginia: Spencer v. Commonwealth, 238 Va. 563, 568-69,385 S.E.2d 850 (Va. 1989), cert. denied, 493 U.S. 1093; Wyoming: Hopkinson v. State, 798 P .2d 1186, 1187 (Wyo. 1990); District Court (Arizona): Lambright v. Lewis, 932 F.Supp. 1547 (D. Ariz. 1996), aff'd in part and remanded en banc sub nom., Lambrightv. Stewart, 191 F.3d 1181 (9thCir. 1999); LaGrandv. Lewis, 883 F.Supp. 469, 470- 71 (D.Ariz. 1995), aff'd, 133 F.3d 1253 (9th Cir. 1998), cert. denied, 525 U.S. 1050; District Court (Arkansas): Baker v. Lockhart, 791 F.Supp. 1388, 1394 (E.D. Ark. 1992); Fifth Circuit: Kelly v. Lynaugh, 862 F.2d 1126,1135 (5th Cir. 1988), cert. denied, 492 U.S. 925; Ninth Circuit: Polandv. Stewart, 117 F.3d 1094,1104-05 (9th Cir. 1997), cert. denied, 523 U.S. 1082; Rupe v. Wood, 93 F.3d 1434 (9th Cir. 1996), cert. denied, 519 U.S. 1142; Tenth Circuit: Andrews v. Shulsen, 802 F.2d 1256 (10th Cir. 1986), cert. denied, 485 U.S. 919; Federal prisoners: United States v. Chandler, 950 F.Supp. 1545 (N.D. Ala. 1996), aff'd218 F.3d 1305, cert. denied, 531 U.S. 1204.
17

execution. See People v. Stewart, 121 Ill. 2d 93, 117 Ill. Dec. 187, 197,520 N.E.2d 348,358, cert. denied, 488 U.S. 900(1988).
Baker acknowledges that the chemicals used by the State of Maryland are identical to those used by other states which use lethal injection as a method of execution. However, Baker then argues that the use of the three drugs individually, and in combination, is unconstitutional. Baker's argument is based on speculation disguised as fact.
The affidavit of Dr. Mark Dershwitz, M.D., Ph.D., annexed hereto as Exhibit 1, refute Baker's dramatic claims with scientifically supported facts. Dr. Dershwitz states:
8. It is my opinion, to a reasonable degree of medical certainty, that a 2.5% solution of thiopental sodium, the concentration specified above, administered at a rate of approximately 1 mL. per second, the low end of the range specified above, would render most people unconscious within sixty seconds from the start of administration. By the time all 120 mL. of thiopental sodium solution are injected, at the rate of 1 mL. per second, approximately 99.999999999% of the population of people weighing 286 pounds would be rendered unconscious.
9. It is my opinion, to a reasonable degree of medical certainty, that the administration of 120 mL. of a 2.5% solution of thiopental sodium, as specified above, would cause virtually every person to stop breathing within one minute of administration. While the subsequent administration
18

of pancuronium bromide would have the effect of paralyzing the person and preventing him from breathing, virtually every person given 3000 mg. of thiopental sodium, as specified above, will have stopped breathing prior to the administration of the pancuronium bromide. Thus, even in the absence of the administration of pancuronium bromide and potassium chloride, the administration of 3000 mg. of thiopental sodium alone would be lethal to virtually any person.
10. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a 0.001% probability that a 130 kilogram (286 pound) person administered 3000 mg. of thiopental sodium would be conscious and able to experience pain five minutes after administration.
11. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a .007% probability that a 130 kilogram (286 pound) person administered 3000 mg. of thiopental sodium would be conscious and able to experience pain ten minutes after administration.
12. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a 0.077% probability that a 130 kilogram (286 pound) person administered 3000 mg. of thiopental sodium would be conscious and able to experience pain thirty minutes after administration.
13. It is my opinion, to a reasonable degree of medical certainty, that there is approximately a 1.5% probability that a 130 kilogram (286
19

pound) person administered 3000 mg. of thiopental sodium would be conscious and able to experience pain one hour after administration.
14. It is my opinion, to a reasonable degree of medical certainty, that the administration of 3000 mg. of thiopental sodium would render most people unconscious for a period of two hours.
15. It is my opinion, to a reasonable degree of medical certainty, that there is an exceedingly small risk that a 130 kilogram (286 pound) person administered 3000 mg. of thiopental sodium as specified above could or would experience any pain associated with the subsequent administration of pancuronium bromide and potassium chloride, as specified above. Dr. Dershwitz also refutes many of the pseudo scientific and medical opinions expressed by Baker’s medical expert, Dr. Mark Heath:
16. I have reviewed the affidavits of Dr. Mark Heath filed in this and other similar cases. I have noted that Dr. Heath’s published works focus on the molecular mechanisms of pain. It does not appear that Dr. Heath has any particular expertise in the pharmacodynamics and pharmacokinetics of anesthetic medications. In other words, Dr. Heath has no apparent expertise in the time course of a drug’s effect, which in my view is the primary medical and scientific issue raised in this case. While all anesthesiologists should be familiar with the use of thiopental sodium, pancuronium bromide, and potassium chloride, my primary research
20

interest throughout my career in anesthesiology has been the study of the time course of the effects of anesthetic drugs.
17. Dr. Heath’s affidavit in this case, at page 3, expresses his opinion that “the lethal injection procedures selected by Defendants for use in Maryland and used elsewhere subject the prisoner to an increased and unnecessary risk of experiencing excruciating pain in the course of an execution.” Dr. Heath’s opinion is not itself a scientific or science-based statement, and it does not appear to be based upon any scientific study of Maryland’s procedures. Rather, Dr. Heath’s opinion appears to based upon his hypothetical consideration of potential mishaps.
18. Dr. Heath’s affidavit, at page 9, refers to the administration of thiopental sodium at the outset of a lethal injection execution as “the provision of general anesthesia,” and expresses his opinion “to a reasonable degree of medical certainty” that “the general anesthesia that is necessary for the humane conduct of the execution should not be provided by individuals who have not completed anesthesiology training.” Dr. Heath’s opinion fails to account for the fact that the provision of general anesthesia in the clinical context involves the goal of maintaining a patient at a certain level of unconsciousness, utilizing varying amounts of an anesthetic agent, like thiopental sodium during surgery, with the ultimate goal of having the patient awaken quickly at the conclusion of surgery. This does indeed require a high level of skill, but it is not a skill that is necessary when a
21

more than lethal dose of thiopental sodium is administered in combination with other lethal agents for the purpose of assuring death.
19. Dr. Heath’s affidavit, at page 10, expresses his apparent concern over the mixing, storage and use of thiopental sodium (or sodium pentothal). It is my understanding that Maryland uses thiopental sodium packaged in 500 mg. kits containing the drug in powder form and 20 mL. of diluent. The mixing of the powder and the diluent is simple and straightforward as described in the package insert. The package insert also states that the reconstituted solution is stable for twenty-four hours at room temperature. It is my opinion, to a reasonable degree of medical certainty, that the mixing and preparation of the thiopental sodium approximately 6090 minutes before the execution, in accordance with the package insert and as specified above, presents no substantial concern as to its stability and effectiveness when subsequently used as specified above. It is my opinion, to a reasonable degree of medical certainty, that the 2.5 % solution of thiopental sodium specified above would remain stable in solution at room temperature for at least 24 hours after preparation.
20. Dr. Heath’s affidavit, at page 10, expresses his apparent concern over the possibility that the “IV setup” may leak because it consists of multiple components that are assembled by hand. It is my understanding that with the execution of Steven Oken in June, 2004, Maryland began to use “Luer Lock” IV components, a relatively recent innovation. Because
22

these components “lock” together, they substantially reduce the possibility of an IV setup loosening and leaking.
21. Dr. Heath’s affidavit, at pages 10-11, expresses his apparent concern over the possibility of an improperly inserted catheter. It is my understanding that Maryland utilizes a Maryland Board of Nursing Certified Nursing Assistant (“CNA”) to place the catheters in the execution procedure. These medical paraprofessionals are typically well trained and highly skilled for their specialized tasks, and they are increasingly utilized in clinical medical practice. The State’s certification requirement helps to ensure that only qualified and competent individuals are permitted to perform these tasks. It is my opinion, to a reasonable degree of medical certainty, that it is not essential to staff an execution conducted in accordance with the procedures specified above exclusively with credentialed professional medical personnel. It is my opinion that IV catheters can properly be placed by appropriately trained, experienced, and credentialed paraprofessionals, like Maryland’s CNA’s, and that a licensed physician should be present throughout the lethal injection procedure. Thus, a rapid, painless, and humane execution can be accomplished by trained and experienced non-medical personnel.
22. Dr. Heath’s affidavit, at page 11, expresses his apparent concern over the possibility that excessive pressure on the syringe plunger may result in tearing, rupture, or leakage of the vein. As I indicated above, it is
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my understanding that Maryland’s procedures provide that the contents of each syringe will be administered at a rate of approximately 1-1.5 mL. per second. It is my opinion, to a reasonable degree of medical certainty, that this rate of administration is not excessive and does not pose a significant risk of tearing or of rupturing the vein or of otherwise causing the vein to leak.
23. Dr. Heath’s affidavit, at page 11, expresses his apparent concern that the catheter may become dislodged if it is not secured after insertion by sutures, tape, or other adhesive material. It is my understanding that Maryland’s procedures provide for securing the catheter with tape.
24. Dr. Heath’s affidavit, at page 11, expresses his apparent concern that a failure properly to flush the IV line between the injections of the three lethal drugs could result in precipitation of one of the drugs and interference with the delivery of the drugs to the inmate. As I indicated above, it is my understanding that Maryland’s procedures provide for flushing the IV line between injections by running lactated ringers or saline “wide open” for approximately 10 seconds. It is my opinion, to a reasonable degree of medical certainty, that this method of flushing the IV line between the injections of the three lethal drugs poses virtually no risk of precipitation.
25. Dr. Heath’s affidavit, at page 11, expresses his apparent concern that a failure to loosen or remove a tourniquet or restraining straps may
24

impair the delivery of the lethal drugs to the inmate. It is my understanding that Maryland’s procedures provide specifically for the removal of any constricting bands used to assist in the insertion of the IV catheter, and for checking arm straps to ensure that they are not acting as tourniquets.
26. Dr. Heath’s affidavit, at page 14, expresses his apparent concern that thiopental sodium, an “ultra-short acting barbiturate,” will “wear out faster than other classes of barbiturates.” It is my opinion, to a reasonable degree of medical certainty, that the use of thiopental sodium in the dose and manner specified above, in combination with the other drugs as specified above, will promote a rapid and painless death. When thiopental sodium is used for general anesthesia in surgery, it is normally administered in a dose of 300 to 400 mg. The dose used in the lethal injection procedure specified above, 3000 mg., is more than 7 to 10 times the commonly used anesthetic dose. Moreover, it is my opinion, to a reasonable degree of medical certainty, that the “continuous” administration of thiopental sodium for the duration of the execution procedure would not significantly decrease the already exceedingly low risk of the individual regaining consciousness from the initial administration of thiopental sodium, and is not necessary to promote a rapid and painless death.
27. Dr. Heath’s affidavit, at page 14, expresses his view that “[t]here is no medical purpose to be served by the administration of pancuronium during lethal injection procedures.” To the contrary, it is my
25

opinion, to a reasonable degree of medical certainty, that the administration of pancuronium bromide in the manner specified above would act to decrease the involuntary contraction of skeletal muscles caused by potassium chloride. These involuntary muscular contractions could erroneously be interpreted by the lay observer as pain or discomfort.
28. Dr. Heath’s affidavit, at page 15, expresses his apparent concern that Maryland’s procedures fail to provide for “testing” of the “surgical plane of anesthesia” after the administration of the thiopental sodium. However, a “surgical plane of anesthesia” is not the objective sought to be accomplished by the administration of 3000 mg. of thiopental sodium. The objective is to cause the inmate to become unconscious and to remain unconscious for a period of time that far exceeds the time required to administer the pancuronium bromide and the potassium chloride. As I have indicated above, the administration of 3000 mg. of thiopental sodium alone would be lethal to virtually any person. Dr. Dershwitz's declarations, considered in light of the declarations of Assistant Commissioner Randall Watson in his Affidavit,5 annexed hereto as Exhibit 2, give this court complete assurance as a matter of competent, scientific fact that the overwhelming likelihood is that Baker's execution will be accomplished without unconstitutional pain
5 Assistant Commissioner Watson explains in his Affidavit that he will be the “Execution Commander” for the Baker execution, he confirms Dr. Dershwitz’s understanding of the procedures that will be used in the course of the execution, and he dispels many of the non-medical concerns expressed by Baker’s expert, Dr. Heath.
26

and suffering. In response, Baker offers only speculation as to what could possibly happen, through the claims of Dr. Heath and the belated and unsupported contention that there was a problem in the last execution carried out in Maryland that has not been remedied. Baker certainly has not come forth with competent evidence that the problem he claims occurred (dripping of a small amount of liquid from an IV line) resulted in an unconstitutional execution. More importantly, even if problems had occurred in the past, or might occur in the future, "[t]he risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review." Campbell v. Wood, 18 F.3d at 681.
In case nearly identical to Baker's, Cooper v. Rimmer, 358 F.3d 655 (9th Cir. 2004), the Ninth Circuit affirmed the district court's denial of a temporary restraining order, a preliminary injunction, and expedited discovery, all of which Cooper had sought in connection with his last-minute challenge to the state's lethal injection procedures. The court also found no merit in any of Cooper's substantive complaints about an allegedly deficient execution protocol, use of allegedly untrained personnel, or the administration of the same three drugs that will be used during Baker's execution. See id. at 657-59. The Ninth Circuit noted the widespread adoption of lethal injection and held that the possibility of error in the process is not enough to make a case of substantial risk of unconstitutional pain and suffering. This Court should follow the Ninth Circuit's decision in Cooper v. Rimmer and reject Baker's unsupported claims.
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Lethal injection is used by nearly every state that imposes capital punishment. Its constitutionality as a method of execution has been upheld time and again. There can be no doubt that lethal injection is not cruel and unusual punishment per se. As for Baker's particular case, Defendants have demonstrated through the affidavits of Dr. Dershwitz and Assistant Commissioner Watson that the possibility of Baker enduring unconstitutional pain and suffering during his execution is extremely remote. Accordingly, Baker’s motion for temporary injunctive relief should be denied.
BAKER’S CLAIM THAT THE EXECUTION OPERATIONS MANUAL VIOLATES MARYLAND’S STATE ADMINISTRATIVE PROCEDURE ACT
IS WITHOUT LEGAL BASIS The notice and comment provisions of the Maryland Administrative Procedure Act
are not applicable to the Executions Operations Manual Baker’s contention that the Executions Operations Manual is a regulation that was enacted in violation of the Administrative Procedure Act (APA) is incorrect. §10101(g)(1) of the Administrative Procedure Act defines “regulation” as follows: a statement or an amendment or repeal of a statement that: (i) has general application; (ii) has future effect; (iii) is adopted by a unit to: 1. detail or carry out a law that the unit administers; 2. govern organization of the unit; 3. govern the procedure of the unit; or 4. govern practice before the unit; and (iv) is in any form, including: 1. a guideline; 2. a rule; 3. a standard; 4. a statement of interpretation; or 5. a statement of policy. (2) "Regulation" does not include: (i) a statement that: 1. concerns only internal management of the unit; and 2. does not affect directly the rights of the public or the procedures available to the public; (ii) a response of the unit to a petition for adoption of a regulation,
28

under § 10-123 of this subtitle; or (iii) a declaratory ruling of the unit as to a regulation, order, or statute, under Subtitle 3 of this title. (3) "Regulation", as used in §§ 10-110 and 10-111.1, means all or any portion of a regulation. Md. Code Ann., State Gov’t § 10101(g).
The Execution Operations Manual does not have general application. The manual merely establishes internal rules and procedures for DOC staff to follow in order to ensure the DOC’s orderly performance of its duty to administer lethal injection to an inmate sentenced to death. The manual is not a regulation within the meaning of the APA. See DCM 110-2. See also Dep’t of Health & Mental Hygiene v. Chimes, Inc., 343 Md. 336, 681 A.2d 484 (1996).
Baker misconstrues the Court of Appeals’ recent decision in Massey v. Secretary, Dep’t of Public Safety and Correctional Services, ______ Md. ______, 2005 WL 3092137 (November 21, 2005) in arguing that the Executions Operations Manual is invalid because it was not adopted in accordance with notice and comment provisions of the Maryland Administrative Procedure Act. Md. Code Ann., State Gov’t §§ 10-101, (2004) et seq. Plaintiff’s Memorandum of Law in Support of Complaint at 19.
In Massey, the Court of Appeals did not, as Baker alleges, strike down “DOC directives pertaining to the punishment of prisoners for the violations of custodial rules.” Plaintiff’s Memorandum of Law at 19. Rather, the Court held that two Department of Public Safety and Correctional Services Directives (DPSCSDs) - not Division of Correction Directives must be adopted in conformance with the APA to be legally effective. This is an important distinction, as the Court held that only the Commissioner
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of Correction had the authority to adopt guidelines pertaining to the internal management of institutions of the DOC. The Executions Operations Manual was developed by the Commissioner of Correction, not the Secretary of the DPSCS, and thus, the Massey Court’s ultra vires analysis is not applicable to the case at bar.
The Massey holding was a limited one. The Court was “not concerned . . . with the application or validity of the DCD 185 series, but only whether DPSCS 105-4 and 105-5 were legally effective.” Id. at 6. The Court’s holding that DPSCS directives 105-4 and 105-5, which encompass inmate discipline, are not merely guidelines pertaining to the routine internal management of the DOC facilities in no way limits the authority of the Commissioner to adopt procedures for carrying out the execution of inmates sentenced to death without having to submit the procedures to the Joint Committee on Administrative, Executive, and Legislative Review (AELR Committee) for review, and without having to afford the general public the opportunity to comment on the execution procedures. See State Gov’t § 10-111(a). Pertinent to the question of whether a rule or regulation must be adopted in accordance with the APA is whether it is an “internal procedural rule[] adopted for the orderly transaction of agency business rather than a rule that “affects individual rights and obligations” or “confers important procedural benefits.” Massey at 12 (quoting Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499 (1954)).
Even a cursory review of the Executions Operations Manual demonstrates that the manual merely establishes internal rules and procedures for DOC staff to follow in order to ensure the DOC’s orderly performance of its duty to administer lethal injection to an
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inmate sentenced to death. See DCM 110-2 (assigning responsibilities, establishes time frames, listing frequency of drills, and addressing security measures). See Md. Code Ann., Corr. Servs., §§ 3-901 through 3-309 1999). The manual “identifies staff responsibilities in the preparation and implementation of the execution process.” DCM 110-2, P2. To the extent that the Executions Operations Manual addresses inmate behavior at all, it simply sets forth “rules governing the details of prison life,” -- “what inmates may wear, what they may or may not keep in their cells or on their persons, the rules governing security, . . . phone calls, mail, . . .visits” and the like -- that need not be adopted as regulations. Massey, at 15, DCM 110-2, 27 – 29.
Section II. is comprised purely of definitions. DCM 110-2, 4, 5. Section III, entitled, “Logistics and Responsibilities,” established the responsibilities of the personnel involved in the execution process. DCM 110-2, 6 – 9. Section IV, entitled, “ PreExecution Procedures,” addresses the following: the frequency of conducting execution drills; initiation of a log to record all activities and actions related to the Warrant of Execution and the implementation of the death penalty; arranging inspection of the inmate in preparation of intravenous insertion; issuing a press release to the media; establishment of date and time of the execution; inspection of the execution area; ensuring that personnel, procedures, and equipment are prepared for the execution; coordinating traffic control efforts with the Baltimore City Police Department; ordering the pharmaceuticals utilized during the execution; designation of the members of the execution team; responsibilities of the Wardens of the relevant institutions; arranging the news media tour of the execution room; crowd control strategies; operability tests of
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telephones; parking on the date of the execution; security measures; taking inventory of equipment; food service; and steps to be taken if a stay of execution is received prior to the initial surge of sodium pentothal. DCM 110-2, 9 – 25.
Section V, entitled, “Post-Execution Procedures” addresses details such as the Certificate of Death, contacting the funeral director, notifying the victim’s family members, the media briefing, escorting the witnesses, completion of a Serious Incident Report, and the filing of the Certificate of Execution. DCM 110-2, 25 – 27. Section VI, entitled “Specialty Security Unit,” addresses security provisions for individuals awaiting execution, inmate mail, visitation, inmate telephone calls, inmate exercise location restriction, property allowed in the inmate’s cell, and inmate meals. DCM 110-2, 27 – 29. Finally, Section VII, entitled “Command Center,” states, “[t]he Command Center is responsible for the management of the institution during the execution process and immediately following. It is also responsible for coordination of all activities associated with the execution process to include allied agencies.” Section VII. also addresses the identification and responsibilities of the Command Center staff. DCM 110-2, 29 – 32. Clearly, the contents of the Executions Operations Manual do not confer important procedural benefits, nor do they affect fundamental rights that are constitutionally derived. This manual merely governs the orderly transaction of agency business and pertains to routine internal management of the execution process. Id. at 12.
The Delayed Effect of Massey Because the “disposition of an appeal is evidenced not by the Court’s opinion but by a mandate issued by the clerk in conformance with the opinion,” Massey at 16, the
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mere issuance of the Massey court’s opinion has not rendered any DOC policies or procedures invalid. Indeed, the Court declined to declare the directives at issue “immediately ineffective” and directed the Clerk not to issue the mandate until 120 days after the issuance of the opinion. Massey at 15. For this reason, and because the Massey decision does not apply to policies and procedures, like the Executions Operation Manual, adopted by the Commissioner of Correction not to confer “important procedural benefits” but to govern the routine internal management of the DOC, this Court should reject Baker’s argument.
BAKER’S CLAIM THAT THE THREE-DRUG COMBINATION USED IN THE EXECUTION PROCEDURE VIOLATES MD. CODE ANN. CORR. SERV. §3-905 IS CONTRARY TO BINDING PRECEDENT Baker argues that the three-drug combination of sodium pentothal, Pavulon, and
potassium chloride used by the State of Maryland in its execution procedure violates Md. Code Ann. Corr. Serv. §3-905, which provides that “[t]he manner of inflicting the punishment of death shall be the continuous intravenous administration of a lethal quantity of an ultrashort-acting barbiturate or other similar drug in combination with a chemical paralytic agent until a licensed physician pronounces death according to accepted standards of medical practice.”
In making this argument, Baker completely ignores Oken v. State of Maryland, 381 Md. 580, 851 A.2d 538 (2004)(per curiam). Precisely this same argument was presented by Steven Oken in a similar flurry of litigation attending his imminent execution in June, 2004, and this argument was squarely rejected by Maryland’s Court of
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Appeals just five days before the period specified for Oken’s execution.6 Maryland’s high court held “that the method of execution intended to be implemented by the Division of Correction does not violate the provisions of Maryland Code (1999, 2003 Cum.Supp.) §3-905 of the Correctional Services Article or constitute a cruel or unusual punishment as argued by petitioner [Oken].”
This Court, like the U.S. Supreme Court, is of course “bound to accept the interpretation of [the State’s] law by the highest court of the State.” Alabama v. Shelton, 535 U.S. 654, 674, 122 S.Ct. 1764, 1776 (2002)(quoting Hortonville Ed. Assn., 426 U.S. 482, 488, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976). This Court is therefore bound to reject Baker’s argument.
THIS CIVIL ACTION IS SUBJECT TO THE PRISONER LITIGATION REFORM ACT (“PLRA”) “The Prison Litigation Reform Act of 1995 (Act) imposes limits on the scope and duration of preliminary and permanent injunctive relief, including a requirement that, before issuing such relief, ‘[a] court shall give substantial weight to any adverse impact on ... the operation of a criminal justice system caused by the relief.’” Nelson v. Campbell, 541 U.S. 637, 650, 124 S.Ct. 2117, 2126 (2004)(quoting 18 U.S.C. §3626(a)(1)). Further, the PLRA “requires that inmates exhaust available state
6 According to Oken’s execution warrant and consistent with Maryland law, Md. Code Ann. Corr. Serv. §3-902(b), Oken’s execution was to be carried out during the fiveday period beginning Monday, June 14, 2004. Oken was executed on Thursday, June 17, 2004.
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administrative remedies before bringing a §1983 action challenging the conditions of their confinement.” Id.
There has been no allegation or substantiation by Baker that he has invoked, much less exhausted, any available state administrative remedies for his claims. His claims are therefore subject to dismissal by this Court upon the Court’s own motion or on motion of the Defendants. Id. By submitting to these preliminary proceedings, Defendants do not waive their right to invoke the PLRA as the basis for dismissal.
CONCLUSION For all of the foregoing reasons, therefore, Defendants respectfully request that this Court deny the preliminary injunctive relief requested by Plaintiff Baker.
Respectfully submitted, J. JOSEPH CURRAN, JR. Attorney General of Maryland
_____________/s/______________ SCOTT S. OAKLEY Assistant Attorney General Federal Bar No. 3608 Maryland Department of Public Safety and Correctional Services 6776 Reisterstown Road, Suite 313 Baltimore, Maryland 21215 Telephone: (410) 585-3073 Facsimile: (410) 764-5366 Attorneys for Defendants
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

WESLEY EUGENE BAKER,

Plaintiff,

v.

Civil Action No, WDQ-05-3207

MARY ANN SAAR, SECRETARY, et al.,

Defendants.

LINE DISMISSING COMPLAINT NOW COMES the Plaintiff and through undersigned counsel Michael E. Lawlor & Gary E. Proctor, Assigned Public Defenders, and Gary W. Christopher & Franklin W. Draper, Assistant Federal Public Defenders, pursuant to Federal Rule of Civil Procedure 41, hereby dismissed the entirety of the Complaint filed in the Circuit Court for Baltimore City, Maryland on November 28, 2005, thereafter removed to this Court by the Defendants.

Respectfully submitted,
___________S_______________ MICHAEL E. LAWLOR Assigned Public Defender Lawlor & Englert, LLC 6305 Ivy Lane Suite 704 Greenbelt, MD 20770 301.474.3404
1

_________S_________________ GARY E. PROCTOR Assigned Public Defender La. Bar Roll # 27859 3209 Evergreen Avenue Baltimore, MD 21214 410.790.2574 Admitted pro hac vice
__________S________________ GARY W. CHRISTOPHER First Assistant Federal Public Defender 100 South Charles Street Tower II, Suite 1100 Baltimore, Maryland 21201 (410) 962-3962
__________S______________ FRANK W. DRAPER Assistant Federal Public Defender 100 South Charles Street Tower II, Suite 1100 Baltimore, Maryland 21201 (410) 962-3962
2

CERTIFICATE OF SERVICE I hereby certify that on this 2d day of December, 2005, the foregoing Line was mailed or otherwise delivered to Scott S. Oakley, Esquire, Assistant Attorney General, Office of the Attorney General, Department of Public Safety and Correctional Services, 6776 Reiserstown Road, Baltimore, Maryland 21215.
___________S____________________ Michael E. Lawlor
3

 
 402 F.Supp.2d 606 (2005)
Wesley Eugene BAKER, Plaintiff, v.
Mary Ann SAAR, et al. Defendants.
No. CIV. WDQ-05-3207.
United States District Court, D. Maryland, Northern Division.
December 1, 2005.
Michael Edward Lawlor, Lawlor and Englert LLC, Greenbelt, MD, Franklin W. Draper, Gary W. Christopher, Office of the Federal Public Defender, for Plaintiff.
Scott S. Oakley, Office of the Attorney General of Maryland, Baltimore, MD, for Defendants.
Memorandum Opinion
QUARLES, District Judge.
Plaintiff Wesley Eugene Baker's execution by lethal injection is scheduled for the week of December 5, 2005. Pending before this Court is Mr. Baker's request for a temporary restraining order and preliminary injunction barring the Defendants from executing [him] in the manner they currently intend. Complaint for Injunctive Relief and Declaratory Injunction at ¶ 68. Also pending is his motion to remand this case to the Circuit Court for Baltimore City. For the following reasons, the motions will be denied.
I. Procedural Background
Mr. Baker was convicted of the first degree murder of Mrs. Jane Tyson and sentenced to death on October 30, 1992. His guilt has been fully adjudicated, and he has exhausted all avenues of post conviction modification of sentence. On November 28, 2005, Mr. Baker filed this Complaint for Injunctive Relief and Declaratory Judgment and accompanying Motion for Temporary Injunction in the Circuit Court for Baltimore City. The case was removed to this Court on November 29, 2005.
II. Analysis
607 Mr. Baker seeks declaratory and injunctive relief arguing that the manner in *607 which the State plans to execute him violates state law[1] as well as his right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and Maryland's Declaration of Rights. Mr. Baker does not deny the Defendants' authority to execute him but contends that the execution must be accomplished "in a manner that does not unnecessarily risk the infliction [of] unnecessary pain and suffering." Complaint for Injunctive Relief and Declaratory Injunction at ¶ 5.
Baker seeks to delay the execution so that he can conduct discovery to determine, inter alia, (1) whether implementation of the current execution protocol will likely be painful and (2) whether an alternative means, including the use of different chemicals and/or the use of trained individuals such as doctors and nurses to administer the protocol would diminish the likelihood of pain. Mr. Baker further attacks the protocol for alleged administrative irregularities surrounding its adoption, and argues that it does not comport with § 3-905 of the Correctional Services Article of the Maryland Code. He contends that these infirmities compel a stay of execution for discovery and changes to the existing protocol.
A. Injunctive Relief
In determining whether to grant the stay of execution, the Court must consider: 1) the likelihood of irreparable harm to Mr. Baker if the stay is denied; 2) the likelihood of harm to the State if the stay is granted; 3) the

likelihood that Mr. Baker will succeed on the merits of his Eighth Amendment and state law claims; and 4) the extent to which Mr. Baker has delayed unnecessarily in bringing his claim. Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004); see also Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353 (4th Cir.1991); Darr v. Massinga, 838 F.2d 118 (4th Cir.1988); Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir.1977); Oken v. Sizer, 321 F.Supp.2d 658 (D.Md.2004). These considerations, however, do not carry equal weight. Oken, 321 F.Supp.2d at 666.
Underlying the Court's analysis, however, is the strong presumption against granting a stay of execution. Last minute stays of execution interfere with the orderly processes of justice and should be avoided in all but the most extraordinary circumstances. Stockton v. Angelone, 70 F.3d 12, 13 (4th cir.1995); Reid v. Johnson, 333 F.Supp.2d 543 (E.D.Va.2004).
1. Mr. Baker's Harm and the Likelihood of his Success on the Merits.
Mr. Baker must establish the likelihood that he will suffer an unconstitutionally painful execution under the current protocol; i.e., he must show that the contemplated execution would be unconstitutionally cruel and unusual. Inextricably connected to this showing of harm is a showing that he is likely to succeed on the merits of his Eighth Amendment claim.
In Maryland, execution by lethal injection involves the administration of sodium pentothal (a barbiturate to induce unconsciousness), pancuronium bromide (a paralyzing agent) and potassium chloride (to cause cardiac arrest). [2]
608 *608 To demonstrate an Eighth Amendment violation, Mr. Baker must show that there is a substantial risk that he will be subjected to an unnecessary and wanton infliction of pain contrary to contemporary standards of decency. Helling v. McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); Reid v. Johnson, 333 F.Supp.2d 543 (E.D.Va.2004). As Articles 16 and 25 of the Maryland Declaration of Rights are in para materia with the Eighth Amendment, Mr. Baker must make the same showing to establish a violation under Maryland law. Aravanis v. Somerset County, 339 Md. 644, 656, 664 A.2d 888 (Md.1995), Harris v. State of Maryland, 312 Md. 225, 237 n. 5, 539 A.2d 637 (Md.1988); Walker v. State of Maryland, 53 Md.App. 171, 180, 452 A.2d 1234 (Md.1982).
The Maryland Court of Appeals reviewed the state's execution protocol in Oken v. State of Maryland and held that the process by which Maryland effects the death penalty does not constitute cruel and unusual punishment. Oken, 381 Md. 580, 851 A.2d 538 (Md.2004).[3]
As it is unlikely that Mr. Baker will prevail on his Eighth Amendment and related claims, he has asserted an insubstantial harm.
Mr. Baker's assertion that he will be executed under a protocol that violates state law and was adopted in violation of state administrative procedures also states an insubstantial injury. Any procedural defect in the adoption of the protocol did not harm Mr. Baker because such a defect did not lead to adoption of a cruel and unusual means of executing him.
2. The Likelihood of Harm to the State
Balanced against the insubstantial harms identified by Mr. Baker is the State's significant interest in enforcing its criminal judgments. Nelson, 541 U.S. at 650, 124 S.Ct. 2117; In re Blodgett, 502 U.S. 236, 239, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992); McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). That interest is heightened when lengthy state and federal proceedings reviewing the conviction have run their course. Calderon v. Thompson, 523 U.S. 538, 555-556, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). In this case the balance of harms favors the state.
3. Mr. Baker's Delay in bringing his claim
Given the State's significant interest in enforcing its judgments, there is a strong presumption against the grant of a stay when the claim could have been considered on the merits without a stay. Nelson, 541 U.S. 637, 124 S.Ct.

609 2117, 158 L.Ed.2d 924. As the execution protocol has been in effect since June 2004, Mr. Baker could have *609 challenged the protocol well before this suit was filed on November 28, 2005.[4]
B. Motion to Remand
Mr. Baker has moved to remand this action to the Circuit Court for Baltimore City because his complaint primarily concerns matters of state law. Defendants counter that Mr. Baker's state law claims turn on questions of federal law.
The gravamen of Mr. Baker's complaint 0907 that the State's execution protocol is cruel and unusual punishment 0907 favors adjudication in this Court.
Accordingly, Mr. Baker's motion to remand this proceeding to the Circuit Court for Baltimore City will be denied.
III. Conclusion
For the reasons discussed above, the stay of execution and motion to remand will be denied.
Order
For the reasons discussed in the accompanying Memorandum Opinion, it is, this 1st day of December 2005, ORDERED that:
1. Plaintiff's request for a temporary restraining order and preliminary injunction BE, and HEREBY IS, DENIED;
2. Plaintiff's motion to remand this proceeding BE, and HEREBY IS, DENIED;
3. The Clerk of the Court shall send copies of this Memorandum Opinion and Order to counsel for the parties.
[1] Specifically, Baker claims that the current execution protocol violates Md.Code Ann., Corr. Serv., § 3-905 (Method of Execution) and was enacted in violation of Maryland's Administrative Procedure Act ("APA"). When the court refers to the execution protocol, it is referring generally to the "Execution Operations Manual," dated June 12, 2002 and the "Lethal Injection Checklist" dated June 12, 2004.
[2] In a previously submitted affidavit and testimony at today's hearing, Mr. Baker's expert physician, Mark J.S. Heath, M.D. explained that there is sufficiently available medical knowledge and expertise by which the state can increase the likelihood that Mr. Baker may have a pain-free execution.
[3] From the detailed discussion of the execution protocol found in Chief Judge Bell's dissent in Oken, it is clear that the Maryland Court of Appeals was acquainted with the alleged deficiencies in the chemicals and procedures in the State's execution procedure when it determined that the execution protocol does not offend the Constitution. Oken, 381 Md. at 581-583, 851 A.2d 538 (Bell, C.J., dissenting). The Supreme Court's vacatur of the District Court's stay of execution in Sizer v. Oken similarly establishes that Maryland's execution protocol does not offend the Constitution. Oken, 542 U.S. 916, 124 S.Ct. 2868, 159 L.Ed.2d 290 (2004).
[4] Dr. Heath acknowledged that although he only recently acquired information confirming his belief that potassium chloride is the cause of death in executions under the State's protocols, that information merely bolsters testimony he has previously given under oath. He also acknowledged that post mortem evidence about the blood concentrations of sodium pentothal-which suggests the possibility that there was insufficient anesthesia in executions conducted under a protocol similar to Maryland's-had been known by him more than a year ago. Nothing proffered by Mr. Baker indicates why his challenge to the State's protocol could not have been made before November 28, 2005.
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 District of Maryland (CM/ECF Live 3.0) - Docket Report

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U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:05-cv-03207-WDQ

CLOSED

Baker v. Saar et al Assigned to: Judge William D Quarles, Jr Cause: 28:1441 Notice of Removal
Plaintiff Wesley Eugene Baker

Date Filed: 11/29/2005 Date Terminated: 12/05/2005 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Michael Edward Lawlor Lawlor and Englert LLC 6305 Ivy Ln Ste 704 Greenbelt, MD 20770 13014743404 Fax: 13014743406 Email: mlawlor@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Franklin W Draper Office of the Federal Public Defender 100 S Charles St Ste 1100 Tower 2 Baltimore, MD 21201 14109623962 Fax: 14109620872 Email: frank_draper@fd.org ATTORNEY TO BE NOTICED
Gary W Christopher Office of the Federal Public Defender 100 S Charles St Ste 1100 Tower 2 Baltimore, MD 21201 14109623962 Fax: 14109620872 Email: gary_christopher@fd.org ATTORNEY TO BE NOTICED
Gary Edward Proctor Law Offices of Gary E Proctor LLC Eight E Mulberry St Baltimore, MD 21202 14104441500 Fax: 18662304455 Email: gary_proctor@verizon.net

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V. Defendant Mary Ann Saar Secretary, Department of Public Safety and Correctional Services
Defendant Frank C. Sizer, Jr. Commissioner Maryland Division of Correction
Defendant
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ATTORNEY TO BE NOTICED
Joseph B Tetrault Prisoner Rights Information System of Maryland Inc P.O. Box 929 Chestertown, MD 21620 14105281777 Fax: 14105281550 Email: jtetrault@prisminc.org ATTORNEY TO BE NOTICED
represented by Scott S Oakley Office of the Attorney General of Maryland Dept of Public Safety and Correctional Services Plaza Office Cntr 6776 Reisterstown Rd Ste 313 Baltimore, MD 21215-2341 14105853070 Fax: 14107645366 Email: soakley@dpscs.state.md.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip Michael Pickus Office of the Attorney General 200 St Paul Pl 19th Fl Baltimore, MD 21202 14105766429 Fax: 14105766880 Email: ppickus@oag.state.md.us ATTORNEY TO BE NOTICED
represented by Scott S Oakley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED
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District of Maryland (CM/ECF Live 3.0) - Docket Report

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Lehrman Dotson Warden, Maryland Correctional Adjustment Center
Defendant Gary Hornbaker Warden, Metropolitan Transition Center
Defendant Unknown Executioners

represented by Scott S Oakley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED
represented by Scott S Oakley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip Michael Pickus (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/29/2005
11/29/2005
11/29/2005 11/29/2005 11/29/2005 11/29/2005

#

Docket Text

1 NOTICE OF REMOVAL by Gary Hornbaker, Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson from Circuit Court for Baltimore City, Maryland, case number 24-C-010379. (Filing fee $ 250 receipt number 139527), filed by Gary Hornbaker, Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson. (Attachments: # 1 Civil Cover Sheet)(raf, Deputy Clerk) (Entered: 11/29/2005)
2 COMPLAINT against Gary Hornbaker, Unknown Executioners, Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson , filed by Wesley Eugene Baker. (Attachments: # 1 Memorandum in Support# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7)(raf, Deputy Clerk) (Entered: 11/29/2005)
3 MOTION for Temporary Injunction by Wesley Eugene Baker. (Attachments: # 1 Text of Proposed Order)(raf, Deputy Clerk) (Entered: 11/29/2005)
4 MOTION for Production of Documents and Things by Wesley Eugene Baker. (raf, Deputy Clerk) (Entered: 11/29/2005)
THE ABOVE PLEADINGS 2-4 ARE COPIES FILED IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND (raf, Deputy Clerk) (Entered: 11/29/2005)
5 FILED IN ERROR-STANDING ORDER re: Removal. Signed by Judge William D Quarles Jr. on 11/29/05. (raf, Deputy Clerk) Modified on 11/29/2005 (raf, Deputy Clerk). (Entered: 11/29/2005)

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11/29/2005 11/29/2005 11/30/2005
11/30/2005
11/30/2005 11/30/2005 11/30/2005 11/30/2005
11/30/2005 11/30/2005
12/01/2005 12/01/2005 12/01/2005 12/01/2005

6 NOTICE of Appearance by Gary W Christopher on behalf of Wesley Eugene Baker (Attachments: # 1)(Christopher, Gary) (Entered: 11/29/2005)
7 NOTICE of Appearance by Franklin W Draper on behalf of Wesley Eugene Baker (Draper, Franklin) (Entered: 11/29/2005)
8 ORDER DIRECTING counsel for the Defendants to hand-deliver to Chambers by 3:30p.m. today a copy of the complete execution protocol to be used in Mr. Baker's case as therein set forth. Signed by Judge William D Quarles Jr. on 11/30/05. (mcb, Deputy Clerk) (Entered: 11/30/2005)
9 (FILED IN ERROR - WILL REFILE) NOTICE of Appearance by Phillip Michael Pickus on behalf of Gary Hornbaker, Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson (Pickus, Phillip) Modified on 11/30/2005 (mcb, Deputy Clerk). (Entered: 11/30/2005)
10 NOTICE of Appearance by Phillip Michael Pickus on behalf of Gary Hornbaker, Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson (Pickus, Phillip) (Entered: 11/30/2005)
11 ORDER DIRECTING counsel to file their answers to the questions addressed in this Order by 8:30a.m. on Thursday, December 1, 2005. Signed by Judge William D Quarles Jr. on 11/30/05. (mcb, Deputy Clerk) (Entered: 11/30/2005)
12 MOTION to Remand to State Court by Wesley Eugene Baker. Responses due by 12/19/2005 (Christopher, Gary) (Entered: 11/30/2005)
13 RESPONSE in Opposition re 3 MOTION for Permanent Injunction and Preliminary Injunction filed by Gary Hornbaker, Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson. Replies due by 12/14/2005. (Attachments: # 1 Exhibit Exhibit 1 to Memorandum# 2 Exhibit "A" to Dershwitz Affidavit# 3 Exhibit "B," "C," and "D," to Dershwitz Affidavit# 4 Exhibit "2" to Memorandum)(Oakley, Scott) (Entered: 11/30/2005)
14 MOTION for Gary E. Proctor to Appear Pro Hac Vice by Wesley Eugene Baker. (mcb, Deputy Clerk) (Entered: 11/30/2005)
15 MARGINAL ORDER granting 14 Motion of Plaintiff for Gary E. Proctor to Appear Pro Hac Vice (Fee paid Receipt #14637005763 - for Document #15 see #14). Signed by Judge William D Quarles Jr. on 11/30/05. (mcb, Deputy Clerk) (Entered: 11/30/2005)
16 STATUS REPORT Answers to Questions by Gary Hornbaker, Mary Ann Saar, Frank C. Sizer, Jr, Lehrman Dotson. (Oakley, Scott) (Entered: 12/01/2005)
17 RESPONSE re 13 Response in Opposition to Motion, filed by Wesley Eugene Baker. (Christopher, Gary) (Entered: 12/01/2005)
18 RESPONSE re 11 Order filed by Wesley Eugene Baker. (Christopher, Gary) (Entered: 12/01/2005)
19 RESPONSE re 11 Order filed by Wesley Eugene Baker. (Christopher, Gary) (Entered: 12/01/2005)

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12/01/2005 12/01/2005 12/01/2005 12/01/2005
12/01/2005 12/01/2005
12/01/2005 12/02/2005 12/02/2005

20 RESPONSE in Opposition re 12 Motion to Remand to State Court (Oakley, Scott) Modified on 12/1/2005 (raf, Deputy Clerk) Modified on 12/1/2005 (cag, Deputy Clerk). (Entered: 12/01/2005)
21 NOTICE of Appearance by Joseph B Tetrault on behalf of Wesley Eugene Baker (Tetrault, Joseph) (Entered: 12/01/2005)
22 RESPONSE re 11 Order filed by Wesley Eugene Baker. (Christopher, Gary) (Entered: 12/01/2005)
Motion Hearing held on 12/1/2005 re 3 MOTION for Permanent Injunction filed by Wesley Eugene Baker; Witness and Oral Argument of counsel heard before Judge William D Quarles Jr.. (Court Reporter Martin Giordano.) (rhl, Deputy Clerk) (Entered: 12/01/2005)
23 MEMORANDUM OPINION. Signed by Judge William D Quarles Jr. on 12/1/05. (mcb, Deputy Clerk) (Entered: 12/01/2005)
24 ORDER denying 3 Motion of Plaintiff for a Temporary Restraining Order and Preliminary Injunction, denying 12 Motion of Plaintiff to Remand to State Court. Signed by Judge William D Quarles Jr. on 12/1/05. (mcb, Deputy Clerk) Modified on 12/1/2005 (mcb, Deputy Clerk). (Entered: 12/01/2005)
25 Hearing Exhibits. (mcb, Deputy Clerk) (Entered: 12/01/2005)
26 STIPULATION of Dismissal by Wesley Eugene Baker. (Christopher, Gary) (Entered: 12/02/2005)
27 PAPERLESS ORDER APPROVING 26 Line Dismissing Complaint filed by Wesley Eugene Baker. Signed by Judge William D Quarles Jr. on 12/2/05. (mcb, Deputy Clerk) (Entered: 12/02/2005)

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0.24

5 of 5

9/4/2007 2:07 PM