Supreme Court Weighs Death Row Prayer Wish

On today’s podcast, David and Sarah talk to Erin Busby, Supreme Court co-counsel for John ...

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On today’s podcast, David and Sarah talk to Erin Busby, Supreme Court co-counsel for John Ramirez in a critical death penalty religious liberty case. They walk through oral arguments and discuss the mysterious “silent justice.” Then David and Sarah talk billboards. Yes, billboards. And they wrap with a discussion of misconceptions of self-defense and the Kyle Rittenhouse case.

Show Notes:

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  1. CRS

    The intro music: I hope you change it. Something more energetic would be nice. The original music was much better imo.

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  2. ManyNothings

    Hi guys, physician here who is thrilled that my MD can finally prove it's use.

    The whole fainting thing is ridiculous for a number of reasons:

    1. IVs are very easily kept in place - they manage to stay in during CPR when there are literally people on top of patients pushing on their chests. Furthermore, the tubing used to carry the drugs is long and durable, and extra slack can be added to the line if needed.

    2. Gurneys have wheel locks on them, even old ones. Trust me, I've leaned on them many, many times.

    3. As many others have pointed out, an individual who faints in the room is not going to summersault over to the opposite end of the table and rip out an IV. And no, the slight jostle of the patient or the medical equipment is not going to cause a malfunction.

    If you want to be double, triple safe, have the pastor at the opposite end of the patients body, and on the opposite side of the IV line. Short of the pastor deliberately trying to pull the line out, I cannot come up with a feasible series of events where he would cause anything other than a minor problem, let alone anything "catastrophic"

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    Jilly Mac

    Here is a little insight from a Correctional RN (although, I have never worked on or with Death Row inmates). I think the fainting hypo is one we need not worry about. The IV site will be secured with tape and tegaderm. No one throws a fit or will have hurled themselves violently across even a small room in the event of a syncopal episode. Also, the inmate is restrained on the stretcher as well.

    In one institution I worked in, they had an inmate who had served a very long sentence, for a very serious crime. He was terminal and had been denied a compassionate release. We have a prison in the southern part of the state that has more robust medical services, including hospice, but he did not want to be transferred. This particular institution, for all intents and purposes was his home. He had two family members incarcerated in other prisons in the state. They transferred them in from the other prisons so they could visit him. They allowed his outside family members visits into the prison infirmary. Those may sound like very minor operational adjustments but they are not. Actually, knowing that physical plant, it was a huge security risk because the infirmary was not designed for face to face visits. Transferring two inmates in from other prisons to one with 2200 + inmates could cause countless classification/security issues. Let the pastor pray and lay hands as this man dies.

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  4. Michael.Terrien

    I don't often agree with David on religious matters but I'm with him here. This "what if he faints" hypothetical is pretty far fetched. In addition to being so unlikely it shouldn't be relevant, there is no room that can be called a "room" that's too small to arrange a set up that will prevent it from interfering with the execution. Is this a broom closet? You don't need 30 lines attached to every part of the body to get this done. I don't buy the idea that there isn't an unused limb across the table from the lines that the pastor can touch while he prays. The only "limb" that's relevant here is the one Texas's argument is out on.

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  5. Brendan Bossard

    I see illustrated in some comments, including Sarah's in the podcast, the difference between being too lawyerly and being normally human. The fainting hypotheticals are just--well, I will just say silly. They sound like my nine-year-old describing his dream where the Cat in the Hat defended him from Gollum with crazy Seussian stunts. Maybe we need a Ministry of Crazy Faints.

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    Bill Dyer

    I'm left wondering whether in the Rittenhouse case, the prosecution's missteps (to date, assuming there aren't more) would justify a directed verdict of acquittal on grounds of prosecutorial misconduct.

    I'd say that it does. These aren't trivial missteps in their consequences, and they're inexcusable, and the second one indicates that the chewing out the prosecution got after the first problem was disregarded.

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    1. Brendan Bossard

      Bill, this is interesting. I am a complete layman, so forgive my naivete. I did not know that a judge can direct a verdict of acquittal. Is there precedent for this?

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    Bill Dyer

    I am entirely unpersuaded that the Constitution is the proper source from which to attempt to draw conclusions about the reasonableness of execution procedures. Not everything has a constitutional dimension, even though clever lawyers attempting to represent their clients' interests zealously within the confines of the law may so contend. And while I agree that "death is different" in many legal contexts, that ought not be used as an excuse for courts (and especially federal courts) to micromanage the conduct of executions. But that's what's happening.

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    Travis Weaver

    Re Rittenhouse, I think you guys, and the judge, may have been (slightly) too harsh on the prosecutor. I think his mistakes may have been a bit less flagrant than they appear.

    First, in commenting on Rittenhouse's silence, I think the prosecutor was actually trying establish through cross-examination a legitimate point: that Rittenhouse was conforming his testimony to the media coverage that he had seen on TV and the evidence that already been adduced at trial, as opposed to his own memory and perception. It's similar to the accusation that many defense attorneys like to make when police officers testify they only wrote their affidavit after reviewing the relevant video. With a Defendant, however, it's almost impossible to make this point without implicating the fact that they've been silent, and here the prosecutor really bungled it. So I'm not trying to excuse it, but I don't think he was intentionally trying to comment on Rittenhouse's silence.

    Second, I'm much more sympathetic to the prosecutor on the issue of introducing evidence that was supposedly excluded pre-trial. I say "supposedly" because it sounds like there was at least confusion over whether the judge actually and definitively ruled on the motion in limine before trial. Even the judge seemed to acknowledge that he had "left the door open." (he claimed "for me!" but I'm sorry, that's at best ambiguous and at worst incoherent). I would have interpreted this as reserving a ruling until trial. In my jurisdiction, this is the default -- we actually have case law that says judges generally should not rule on evidentiary questions pretrial (FWIW, I hate this policy). And when that happens, it simply means that the objection will be handled live. So, during trial, the prosecutor asks the question, the defense objects, and the judge rules as he or she would with any normal objection. I've actually been instructed by multiple judges NOT to ask permission before asking the question on which I expect an objection. "Let the other side object" they say. It seems to me this is how the prosecutor expected it to play out, which I find very understandable.

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      Bill Dyer

      Re this: "I've actually been instructed by multiple judges NOT to ask permission before asking the question on which I expect an objection. "Let the other side object" they say."

      My trial practice has been almost exclusively on the civil side. If there's a material reason why orders in limine are different in criminal trials than in civil trials, I'm unacquainted with that. (But I confess there's a great deal of criminal procedure with which I'm unacquainted.)

      The typical argument that I hear and make myself in civil trials, when making a motion in limine, is that even the ASKING of the question will unfairly prejudice my client — that the asking alone rings a bell that can't be un-rung. And the typical order in limine that I ask the judge to sign after the hearing on the motion in limine directs all counsel to avoid any reference to the listed topics in front of the jury, and to instruct their witnesses that they may not volunteer any mention of the listed topics.

      And alas, I've witnessed many a civil trial lawyer bench-slapped for making the wrong assumption about whether a door has been opened. When the judge's latest word has been that the door is closed, no lawyer should presume that the door can be ruled open until the JUDGE has so ruled.

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  9. JayJoanFry

    I was just able to listen to this podcast this morning. It could be that I have the most unique perspective of most (if not all) of your listeners. 1. I am in Texas (five generations). 2. Although I never pursued law school, I've always been a bit nerdy that way. 3. I am an ordained clergyperson. 4. (and most significantly) I have served as a spiritual advisor, (an outside one) for a person convicted, sentenced and executed in federal court (U.S. vs Louis Jones, Jr.), tried/sentenced in 1995 and executed in 2003. He was the third executed by the US government after the long hiatus since the early 1960s and the first federal death penalty case heard by SCOTUS in 50 years, where his sentence was (in my view) flimsily upheld 5-4. I testified in his sentencing hearing, had a pastoral relationship with him from within about two weeks of the crime, participated in his clemency process (which IMHO came close to happening), attended his execution and conducted his funeral afterward. I am still in touch with his daughter. I must say there are many things that this podcast elicited from me, and if I were to comment on it all, it would be longer perhaps than your podcast. But I want to mention is that there was never, at any time, the possibility presented to him or me about the possibility of my being in the execution chamber (which is not small at all, in my memory - it's actually quite large, unless they've changed it in the last 18 years). When was did this policy begin? Lou's execution in 2003 was the last one before 2020 after which there have been 13, I believe. In conclusion, I will say this: prior to my involvement in this case, I had no strong opinion one way or another about the death penalty. But I was ignorant about how the death penalty actually happens in the USA and it was a strictly academic issue. During and after this experience, neither of those two things are true any more. I have seen the death penalty and those involved in it (prisoner, family, victim's family, attorneys, prison guards and chaplains, etc.) and I have learned how race, economic factors, etc. are strongly determinant as well as how inept the justice system is. As one who is generally a limited government conservative politically, I am very opposed to the death penalty; why would we want the government, that screws up most things, in charge of deciding who lives and dies? But also from a pastoral perspective; I don't believe the death penalty helps grieving families, but actually hinders their healing and recovery. As one victim of a crime who testified against her perpetrator who was tried in another capital case (in the book, Forgiving the Dead Man Walking regarding Robert Lee Willie) put it, "it wasn't the justice system that healed me; it was grace. We don't sing 'amazing justice..." Oh well, I went ahead and wrote more than intended anyway. But I would like one of you to respond to my question about the BOP policy about spiritual advisors being in the room.

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    1. Erin Glenn Busby

      The BOP’s current policy is almost certainly a change from the policy in effect in 2003. The law governing outside spiritual advisors in execution chambers has undergone development in the last few years. In 2019, the Supreme Court granted a stay of execution in Murphy v. Collier, 139 S.Ct. 1475, on the ground that the prisoner wanted a Buddhist spiritual advisor in the execution chamber, but Texas was only willing to provide either a Christian or Muslim chaplain (the only two types of chaplains employed by the TDCJ). Justice Kavanaugh filed a concurrence in Murphy, indicating that he thought that the problem there was discrimination among religions and that not allowing any advisor in the chamber would solve the problem. However, in 2020, in Gutierrez v. Saenz, 141 S.Ct. 127, the Court stayed another Texas execution that was scheduled to take place under the then-extant Texas policy of allowing no spiritual advisors in the execution chamber, this time directing the lower courts to determine whether allowing an outside spiritual advisor in the execution chamber would actually present a serious security problem. This decision indicated that there is at least a strong possibility that the Court would find that a condemned prisoner has some right to a spiritual advisor of the prisoner’s choice in the execution chamber. The recent BOP-administered federal executions have taken place against this legal background, and have involved pre-execution negotiations between the BOP and prisoners’ lawyers over what spiritual advisors will be allowed in the execution chamber and what those advisors will be able to do inside the chamber. (If you want to read more about what the BOP has done recently, it is discussed in the Petitioner’s Brief at pages 36-37, and also in the brief the ACLU filed on behalf of prison administrators and spiritual advisors. You can access both via the docket on the Supreme Court website.)

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      1. Brendan Bossard

        Thank you Erin. Now I know how to find these things.

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    2. Michael.Terrien

      I can't speak to most of your experiences, although I thank you for sharing them. There is one piece of your comments, however, that I can respond to - the incompetence of the justice system.

      I have always been a conservative and was very supportive of the death penalty when I was young and, due to the shifting constitutional rulings on it, it had become a very hot button issue.

      Then I went to law school, and studied with professors who were involved with what's morphed since then into the Innocence Project. They didn't convince me. They were lefties after all.

      Then I went into the practice of law in Chicago, and found myself spending a lot of time in the Circuit Court of Cook County. And I discovered a level of randomness of outcome and incompetence of judging that I wouldn't have believed possible.

      My practice was commercial, not criminal, and the criminal division is separate in what we sarcastically called the "Circus Court." But I have every reason to believe the criminal division was no better than the civil one - understaffed by overwhelmed, poorly educated, appointees looking for a sinecure because they had a political connection and weren't qualified to do anything else. Not the people or the circumstances from which you want life or death decisions.

      By the time then Governor Ryan commuted all death sentences in Illinois, I was with him. I continue to believe the death penalty can be a just sentence. I'm not opposed to it in principle. But I'm deeply concerned that we have a lot of courts in this country not qualified to administer it.

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      1. Brendan Bossard

        I wonder if the prosecutor in the Rittenhouse case belongs in the "circus court" category.

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    3. Brendan Bossard

      Jason, I do not want you to think that you are being ignored. I think that your question is, "When did this policy begin [in Texas]?" I defer to experts on this one; but my impression is that this policy never really began but evolved depending on the political contingencies of the moment. I suspect that they just chose not to mention it to you in your case. Something is rotten in Texas. That is my take.

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      1. JayJoanFry

        My question has nothing to do with Texas; the case to which I was referring in my post concerned a federal case. It was mentioned in the pod that US BOP policy allows the condemned a spiritual advisor in the execution chamber. I wondered when such a policy was adopted, because it did NOT when I served as spiritual advisor to Louis Jones, Jr. when he was executed by the US government (not Texas) in 2003, which was the last federal execution until 2020.

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        1. Brendan Bossard

          I hope you can get a good answer. I do not have enough expertise to address this.

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          1. JayJoanFry

            Me, tii. I emailed Ms. Busby the question, as I think she was the one who mentioned it in the podcast.

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    4. JayJoanFry

      I realized I made a grammatical error: Louis Jones was not executed in federal court, but by order of the federal court. But, after my experience I have come to believe that those who want to sentence someone to death ought to have to witness an execution, but I digress.

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      1. Michael.Terrien

        I doubt anyone thought they did it in the courtroom.

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    5. JayJoanFry

      By the way, my name is Jason Fry.

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    Dave T

    I was, on the sugar high of this great pod, going to go and subscribe on Apple and everything else ... but then the soporific effect of the closing music kicked in and I woke up at my desk six hours later with a crick in my neck and a high-resolution imprint of my keyboard on my face.

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