IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 3, 2018 Session

ABU-ALI ABDUR'RAHMAN ET AL. v. TONY PARKER ET AL.

Appeal from the Chancery Court for Davidson County

No. 18-183-111 Ellen H. Lyle, Chancellor

No. M2018-01385-SC-RDO-CV

SHARON G. LEE, J., dissenting.

The Petitioners, who have been sentenced to death, contend that the State's

recently adopted lethal injection protocol violates their federal and state constitutional

rights to be free from cruel and unusual punishment. On this important issue, the

Petitioners are entitled to a fair and meaningful opportunity to be heard at trial and on

appeal without regard to 1) the constitutionality of other lethal injection protocols the

State has no plans to use; 2) the execution dates previously set by this Court for

Petitioners Billy Ray Trick (already executed), Edmund Zagorksi, and David Earl Miller;'

and 3) the length of the Petitioners' briefs or the extra minutes granted for oral argument.

The constitutionality of the State's current lethal injection protocol is a

complicated issue, involving extensive expert testimony. Several factors, over which the

Petitioners had little or no control, combined to deprive them of a fundamentally fair

process. One significant factor is the Court's unfortunate rush to execute based on the

perceived need to end this case before the executions of Petitioners Irick, Zagorski, and

Miller. With the stroke of a pen and in the interest of fairness and justice, the Court could

have reset these executions.

1 Zagorski is set to be executed on October 11, 2018, and Miller on December 6, 2018. trick was

executed on August 9, 2018, after this Court and the United States Supreme Court denied him a stay of

execution. See Irick v. Tennessee, 585 U.S. , (2018) (Sotomayor, J., dissenting) ("In refusing to

grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on

the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his

suffering behind a veneer of paralysis. I cannot in good conscience join in this 'rush to execute' without

first seeking every assurance that our precedent permits such a result. No. M1987-00131-SC-DPE-DD

(Lee, J., dissenting), at 1. If the law permits this execution to go forward in spite of the horrific final

minutes that trick may well experience, then we have stopped being a civilized nation and accepted

barbarism.").

10/08/2018
By putting this case on a rocket docket, the Court denied the Petitioners a fair and

meaningful opportunity to be heard and jeopardized the public's confidence and trust in

the impartiality and integrity of the judicial system. Today, the Court meets its

self-imposed deadline by deciding this case before Zagorski's October 11 execution and

Miller's December 6 execution—but at great cost. I cannot go along with the Court's

decision because these proceedings have not been fundamentally fair to the Petitioners.

For many years, the State's lethal injection protocol has been a moving target,

with the Tennessee Department of Correction frequently changing its lethal injection

protocols. On January 8, 2018, the Department adopted a new lethal injection protocol

consisting of two options: 1) Protocol A, using compounded pentobarbital; 2) Protocol B,

using midazolam, vecuronium bromide, and potassium chloride. Ten days after the

Department announced these protocols, this Court set kick's execution date for August 9,

2018.2

On February 20, 2018, the Petitioners filed a declaratory judgment action in the

trial court, challenging the constitutionality of Protocol B, the new midazolam-based

protocol. The Petitioners claimed that the midazolam-based protocol would cause them to

suffer intolerable pain and that execution by Protocol A, pentobarbital, was an available,

less painful execution alternative. The Petitioners, at the close of proof, moved to amend

their pleadings to conform to the evidence to allege that a two-drug cocktail of

midazolam and potassium chloride was an alternative method of execution. The trial

court denied this request.

The Petitioners faced a steep uphill battle in their efforts to have the

midazolam-based protocol declared unconstitutional. Their obstacles, which ultimately

proved insurmountable, included 1) inconsistent and unworkable requirements imposed

by Glossip v. Gross, 135 S. Ct. 2726 (2015) and the cloak of secrecy regarding Tennessee

executions; 2) the extraordinary and unnecessary time constraints imposed by this Court;

and 3) the State's evasiveness and last-minute decision about its lethal injection protocol.

To begin with, Glossip, a split 5-4 decision by the United States Supreme Court,

required the Petitioners to prove 1) that the State's execution protocol was likely to cause

an intolerable risk of severe pain or needless suffering, and 2) an alternative feasible,

readily implemented, available method of execution that would significantly reduce a

substantial risk of severe pain. Glossip, 135 S. Ct. at 2736-37 (quoting Baze v. Rees, 553

U.S. 35, 50, 52 (2008)). The Petitioners presented expert testimony that the State's

execution protocol of midazolam, vecuronium bromide, and potassium chloride will

cause the inmate being executed to feel severe pain and terror. This is because midazolam

2 On March 15, 2018, the Court set the execution dates for Zagorski and Miller.

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has no analgesic effects and will not render the inmate insensate to pain; vecuronium

bromide causes great anxiety, noxious stimulus, paralysis, and the feeling of

suffocation—all "quite horrific"—and potassium chloride, which stops the heart, causes

the inmate to have very painful feelings of burning upon injection.

Despite this evidence, the trial court dismissed the Petitioners' case because they

failed to prove the second Glossip prong of an available alternative execution method that

would have reduced a substantial risk of severe pain. This Glossip requirement has been

aptly described as "perverse"3 because it replaces the Eighth Amendment's categorical

prohibition against cruel and unusual punishment with a conditional one.4 Thus, under

Glossip, even if the Petitioners establish that the State's execution method will cause

them to experience needless suffering or intolerable pain, the State may still carry out the

execution unless the Petitioners also prove an available alternative method for their own

executions.

Considering the Eighth Amendment's clear prohibition on "cruel and unusual

punishments," the focus here should have been on whether the Petitioners proved that the

State's execution method was likely to cause needless suffering and pain. Yet the

Petitioners' claims and evidence of intolerable pain and torture were not the basis of the

trial court's decision and thus not reviewed on appeal.

Not only is Glossip's available alternative requirement perverse, it is also

unworkable. In Tennessee, executions are cloaked in secrecy, which makes it difficult—if

not impossible—for the Petitioners to establish an available alternative to the State's

method of execution. Tennessee Code Annotated section 10-7-504(h) (Supp. 2017)

protects the identity of individuals or entities directly involved in the execution process.

The trial court here prohibited identification of the Department's agents who were

involved in procuring execution drugs, such as pentobarbital, and of its potential

suppliers.

In addition to the heavy burden imposed by Glossip and the cloak of secrecy

surrounding executions, the Petitioners were operating under extraordinary time

constraints because of the Court's scheduling of Trick's execution on August 9. After the

Petitioners filed their challenge, the starting pistol was fired and the race to execute

began. The trial court had to fast-track the case so that the parties could present their

evidence and the trial court could prepare and file findings of fact, conclusions of law,

and its decision before the August execution date. The trial court set the trial to begin on

July 9, 2018, giving the parties less than five months to effectively conduct written

discovery, litigate discovery disputes, take discovery depositions, locate and retain expert

3 McGehee v. Hutchinson, 137 S. Ct. 1275, 1276 (2017) (Sotomayor, J., dissenting).

4 See Glossip, 135 S. Ct. at 2793 (Sotomayor, J., dissenting).

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witnesses, research legal issues, file trial briefs, and prepare for trial. The discovery

schedule was so compressed that the trial court eliminated summary judgment as an

option because the Petitioners lacked the time to complete discovery and respond to a

motion for summary judgment. Sufficient time for investigation, research, and discovery

was out of the question because of the looming execution date.

The rush to execute here is in stark contrast to the measured way previous

challenges to the State's lethal injection protocols have been handled. This case was

pending in the trial court only 156 days. Yet the 2002 challenge to the State's protocol

using sodium pentothal, pancuronium bromide, and potassium chloride took twice as

long. It was pending in the trial court for 311 days.5 See Abdur 'Rahman v. Bredesen, 181

S.W.3d 292 (Tenn. 2005), cert. denied, 547 U.S. 1147 (2006). The 2013 challenge to the

State's protocol using compounded pentobarbital took four times as long, lasting 645

days in the trial court, which included an appeal of a discovery dispute.6 See West v.

Schofield, 519 S.W.3d 550 (Tenn. 2017), cert. denied sub nom. West v. Parker, 138 S. Ct.

476 (2017), cert. denied sub nom. Abdur'Rahman v. Parker, 138 S. Ct. 647 (2018), reh'g

denied, 138 S. Ct. 1183 (2018).

The Petitioners, already shouldering the heavy burden imposed by Glossip, the

cloak of secrecy surrounding executions, and the fast pace of the proceedings, were also

impeded by the State's evasiveness about the availability of pentobarbital until the eve of

trial and by its last minute decision to eliminate pentobarbital as an execution protocol.

The parties took discovery depositions throughout June, with the Petitioners reasonably

assuming that Protocol A (pentobarbital) was an available alternative execution method

under Glossip. Just a few hours before the parties filed their trial briefs on July 5, 2018,

the Department adopted a revised execution protocol that abandoned Protocol A, leaving

only Protocol B. But the Department, according to testimony from its Commissioner, had

known that pentobarbital was unavailable for executions for about two months before it

retained pentobarbital as a lethal injection method in January 2018. Even so, the State

failed to notify the Petitioners and failed to take a consistent position on the availability

of pentobarbital until the eve of trial.

For example, at the first pretrial hearing on April 11, 2018, counsel for the State

dodged the trial court's questions about the availability of pentobarbital. The trial court,

acutely aware of the time constraints, zeroed in on the problem and repeatedly questioned

counsel about the availability of pentobarbital. The trial court emphasized that the

availability of Protocol A was "essential for the case," and if that question could not be

5 In Abdur'Rahman v. Bredesen, the plaintiffs filed their petition on July 26, 2002, and the trial

court issued its decision on June 2, 2003.

6 In West v. Schofield, the plaintiffs filed their petition on November 20, 2013. The trial began on

July 7, 2015, and the trial court issued its decision on August 26, 2015.

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answered, the trial court proceedings would be "futile and useless," putting the court as

well as the parties in an "untenable position." The State's response to the trial court's

direct question - "will [Protocol A] be available for the August 9th execution?" - was "I

can't answer that question, Your Honor." The trial court then correctly observed that "if

you can't answer [that question] then our proceedings here are really meaningless" and

that it created a "Catch 22" dilemma for the court and the litigants.

The Department's Commissioner testified on June 5, 2018, that the Department

would "search out all options to obtain pentobarbital," but the Department's records tell a

different story. Those records show that the Department's designated drug procurer only

looked for pentobarbital over a four-month period from March 2017 through July 2017.

There appears to have been no activity after July 2017 until June 20, 2018, when the drug

procurer emailed a potential supplier, stating that the Department was "still searching for

USP grade pentobarbital" and "circling back around with folks" to check on availability

for purchase. That said, Texas officials used pentobarbital on July 17, 2018, to execute

Christopher Young; on June 27, 2018, to execute Danny Bible; on May 16, 2018, to

execute Juan Castillo; on April 25, 2018, to execute Erick Daniel Davila; on March 27,

2018, to execute Rosendo Rodriguez III; on February 1, 2018, to execute John David

Battaglia; on January 30, 2018, to execute William Rayford; and on January 18, 2018, to

execute Anthony Shore.7 And in Georgia, officials used pentobarbital to execute Carlton

Michael Gary on March 15, 2018, and Robert Butts, Jr., on May 4, 2018.8 Most recently,

pentobarbital was used in Texas on September 26, 2018, to execute Troy Clark; and on

September 27, 2018, to execute Daniel Acker.9

The State's retention of pentobarbital as an execution protocol until July 5, 2018,

and its refusal to take a firm position on the availability of pentobarbital for Irick's

August execution refutes the State's argument that the Petitioners had actual notice as

early as February 2018 that pentobarbital was not available. Petitioners could have

reasonably inferred the availability of pentobarbital from the Department's adoption of it

in January 2018, the Department's retention of it until July 5, 2018, and the State's

representations in the trial court.

As the trial court accurately observed, the availability of pentobarbital was

essential to the case, and without the State answering the question as to the availability of

pentobarbital, the trial court proceedings were meaningless. For the State to provide the

answer on the eve of trial while effectively evading the question for months was patently

unfair to the Petitioners.

Death Penalty Information Center (DPIC), Execution List 2018,

https://deathpenaltyinfo.org/execution-list-2018.

M

9Id

5
For all these reasons, the Petitioners were denied due process in the form of a

fundamentally fair process. "At its core, the right to due process reflects a fundamental

value in our American constitutional system." Boddie v. Connecticut, 401 U.S. 371, 374

(1971). An essential requirement of due process is notice and an opportunity to be heard.

Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn. 1993) (citations omitted). The

purpose of notice is to give the affected party the opportunity to marshal its proof. Id.

(citation omitted). 'Due process is flexible and calls for such procedural protections as

the particular situation demands.' Id. (quoting Armstrong v. Manzo, 380 U.S. 545, 552

(1965)). The factors we consider in determining whether a party has been deprived of due

process are 1) the private interest affected; 2) the risk that the procedures in place would

erroneously deprive the affected party of that private interest; and 3) the government's

interest, including any fiscal or administrative burdens that would be caused by additional

or substitute procedural requirements. Id.

There could hardly be a more substantial private interest at stake than making sure

that the Petitioners are not made to suffer intolerable pain when the State puts them to

death and that their federal and state constitutional rights to be free from cruel and

unusual punishment are protected. Resetting the scheduled execution dates would have

gone a long way in giving the Petitioners a fair and meaningful opportunity to be heard

and would not have placed any appreciable fiscal or administrative burdens on the State.

In the end, the difficulties of meeting the inconsistent and unworkable Glossip

requirements and the cloak of secrecy surrounding Tennessee executions; the

extraordinary and unnecessary time constraints imposed by the Court due to the

impending, and seemingly unalterable, execution dates; and the State's evasiveness about

its execution method and its last-minute changes to the lethal injection protocols

combined to deny the Petitioners due process in the form of a fundamentally fair process.

II.

This is the Court's first opportunity to review a trial court decision on the

constitutionality of the midazolam-based protocol. The Petitioners, faced with the

prospect of suffering needlessly while being put to death by the State, deserve meaningful

appellate review of the trial court's ruling. Meaningful review includes giving counsel

adequate time to review trial testimony, research and brief the issues, and effectively

advocate for their clients in their appellate briefs and at oral argument. Only then can the

Court, after reviewing the record from the trial court, reading the parties' briefs, listening

to the oral arguments, and studying applicable legal authorities, render its decision. The

Court should not make its decision in haste, but after thoughtful and careful deliberation.

The parties and the public deserve no less. Here, the super-expedited schedule imposed

by the Court denied the Petitioners meaningful appellate review.

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To begin with, the Court unreasonably reduced the time for the Petitioners to file

the record with the appellate court clerk from a minimum of 105 days (or more if an

objection to the record is filed or if the record needs to be supplemented) to nine days

(seven days excluding a weekend). This was rather extraordinary given that the trial

lasted ten days, with twenty-three witnesses testifying and 139 exhibits admitted into

evidence. The record filed with the appellate court clerk consisted of twenty-nine

volumes of court filings, thirty-two volumes of trial transcripts, and nineteen volumes of

trial exhibits, totaling well over 10,000 pages. In reducing the Petitioners' time for filing

the record, the Court failed to consider that filing the record is a three-part process,

involving the parties, the trial court clerk, and the trial court judge.1° The trial court had

no opportunity to review and approve the record, and the parties had no chance to point

out any errors in the record. Not surprisingly, the record—prepared in great haste—is not

completely accurate. The Lead Petitioners" noted that their counsel "corrected apparent

transcription errors," but that they did "not have the physical ability to correct all of the

errors in this record prior to September 6, 2018." Likewise, the Miller Petitioners pointed

to specific "transcription errors [that] change[d] the substance of testimony." 12

Next, the Court cut in half the parties' briefing period from seventy-four days to

thirty-seven days (twenty-six days, excluding weekends and Labor Day). Abdur'Rahman

v. Parker, No. M2018-01385-SC-RDO-CV (Tenn. Aug 13, 2018) (Lee, J., dissenting).

The Lead Petitioners had only fifteen days to review the record and to prepare and file

their brief, while the Miller Petitioners had just ten days to review the record and to

prepare and file their brief and the State had fifteen days to brief the case. Abdur 'Rahman

v. Parker, No. M2018-01385-SC-RDO-CV (Tenn. Aug 27, 2018) (Lee, J., dissenting).

The detrimental effects of the limited briefing schedule are evident from the

parties' briefs. The Miller Petitioners admitted in their brief that they did not have time to

brief fully the trial court's errors:

I° See Abdur'Rahman v. Parker, No. M2018-01385-SC-RDO-CV (Tenn. Aug 13, 2018) (Lee., J.,

dissenting) (reviewing the time frames afforded each participant to fulfill their role, including sixty days

for the Petitioners to file a certified transcript of the proceedings with the trial court clerk, forty-five days

for the trial court clerk to assemble and transmit the record to the appellate court clerk after the filing of

the transcript; and approval of the transcripts and exhibits by the trial court judge within thirty days after

the expiration of the time for filing objections).

11 "Lead Petitioners" refers to the twenty-nine original petitioners who filed a Notice of Appeal in

the Court of Appeals on July 30, 2018. "Miller Petitioners" refers to the four remaining petitioners, David

Earl Miller, Nicholas Todd Sutton, Stephen Michael West, and Larry McKay, who filed a Notice of

Appeal in the Court of Appeals and in this Court on August 23, 2018.

12 For instance, on page three of their brief, the Miller Petitioners called the Court's attention to

an error in Volume XLII, page 1795 of the transcripts of proceedings ("It was a very firm decision that

because there was no memory created does [sic- doesn't] mean that the suffering was not occurring.").

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Due to the "compressed super-expedited" briefing schedule, the Miller

Plaintiffs primarily raise in this brief due process violations because those

errors undermine the integrity of the entire proceeding below. Undersigned

counsel acknowledges the rule on waiver that usually applies when an issue

is not fully briefed on appeal, however, counsel does not have the time or

resources to brief all significant errors which occurred in the proceedings

below and are reflected in the Chancery Court's final order.

(Emphasis added). The Miller Petitioners also noted in their reply brief that it was

"prepared under an extreme time limitation and likely contains errors," and that it lacked

an introduction, all relevant facts, legal authority, record cites and an exhaustive analysis.

Predictably, given the time constraints, the Lead Petitioners had to late-file their brief's

table of authorities. The State even had to file a substitute brief to correct erroneous page

references in the table of contents, in the table of authorities, and in its response to the

issues raised by the Miller Petitioners, as well as citation errors.

Previous appeals of constitutional challenges to the State's lethal injection

protocols have not been rushed or decided hastily. This case was pending only fifty-six

days from the time the Court reached down and assumed jurisdiction on August 13, 2018,

until it released its opinion today. Yet the appeal of the 2002 challenge to the State's

protocol using sodium pentothal, pancuronium bromide, and potassium chloride was

pending in this Court for 231 days.13 See Abdur'Rahman v. Bredesen, 181 S.W.3d 292

(Tenn. 2005), cert. denied, 547 U.S. 1147 (2006). The appeal of the 2013 challenge to the

State's protocol using compounded pentobarbital lasted 391 days in this Court." See

West v. Schofield, 519 S.W.3d 550 (Tenn. 2017), cert. denied sub nom. West v. Parker,

138 S. Ct. 476 (2017), cert. denied sub nom. Abdur'Rahman v. Parker, 138 S. Ct. 647

(2018), reh g denied, 138 S. Ct. 1183 (2018).

The Court does not cure the unfairness of this super-expedited appeal by allowing

the Lead Petitioners to file a brief with an argument section that exceeded the fifty-page

limit in Tennessee Rule of Appellate Procedure 27 and by granting both parties fifteen

more minutes for oral argument.

Given the gravity of the issues in this appeal, the extensive record, and the

required legal analysis, the Court's accelerated schedule deprived the Petitioners of

meaningful appellate review. This mad dash to the finish line was unnecessary. Nothing

13 In Abdur'Rahman v. Bredesen, this Court granted the plaintiff's application for permission to

appeal on February 28, 2005, and filed its opinion on October 17, 2005.

14 In West v. Schofield, this Court granted the State's motion to assume jurisdiction on March 2,

2016, and filed its opinion on March 28, 2017.

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prevented the Court from giving the Petitioners, who are facing possible torture during

their upcoming executions, appellate review that is fair and meaningful.

Because these proceedings have not been fundamentally fair to the Petitioners, I

dissent.

S ARON G. LEE, JUSTICE

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