First Federal Execution in Decades Stalled by Last-Minute Legal Wrangling

Obama-appointed judge gives convicted child killer, white supremacist reprieve

Getty Images
July 13, 2020

A convicted child-killer and white supremacist enjoyed a temporary reprieve on Monday, as legal headwinds in two separate appeals forestalled the first federal execution in 17 years.

Daniel Lewis Lee, convicted in 1998 for the murder of a family of three including an eight-year-old girl, was set to be executed at four o'clock Monday evening, the first of three federal executions slated for the week. But U.S. District Judge Tanya S. Chutkan, an Obama appointee, stayed Lee and the others' executions with just hours to go, arguing in her opinion that the federal government had not adequately addressed a bevy of objections raised previously by Lee and his co-defendants.

The Chutkan ruling—issued by the same judge who in November originally blocked the Trump administration's efforts to reactivate the federal death penalty—follows a Sunday evening win for the Department of Justice, as an appeals court overturned a lower court's stay on Lee's execution sought by several of his victims' family members.

The family, who says the coronavirus crisis has made it unsafe for them to travel to attend Lee's execution (which they oppose), has appealed to the Supreme Court. The Department of Justice has likewise appealed Chutkan's ruling to the D.C. Circuit Court of Appeals.

This tangled web of last-minute rulings and counter rulings exemplifies the legal struggle the Trump administration has faced over the past year in its effort to carry out decades-old death sentences. Such last-minute reversals, legal director of the Criminal Justice Legal Foundation Kent Scheidegger told the Washington Free Beacon, are "far too common"—explaining how a convicted killer like Lee could languish on death row for nearly a quarter century.

Chutkan's 11th-hour ruling on Monday supported Lee and co-plaintiffs' claim that the proposed execution protocol—adopted by the Department of Justice in 2019 as part of its project of restarting federal capital punishment—ran afoul of the Constitution's prohibition on cruel and unusual punishment.

The use of the drug pentobarbital ran an unacceptable risk of inducing pain, Chutkan wrote, while the plaintiffs' request to supplement with fentanyl or use the firing squad met the requirement, set out by the Supreme Court, that they propose an alternative.

Such challenges to individual methods of execution—down to the level of which chemical is used—have been popular among capital defense attorneys in recent years. Supreme Court Justice Neil Gorsuch raised concerns with this approach in a recent ruling, writing that "Courts should police carefully against attempts to use [method] challenges as tools to interpose unjustified delay."

Chutkan previously blocked the executions of Lee and several other federal death-row inmates on the grounds that the Justice Department's protocol ran afoul of a different federal law, the 1994 Federal Death Penalty Act. That ruling was reversed on appeal, but the federal capital offenders returned to Chutkan's court to introduce another objection—beginning the whole appeals process over again.

Chutkan wrote that her last-minute decision was "no fault of the Plaintiffs," instead pinning blame on the Justice Department for scheduling an execution before all possible challenges had been sequentially exhausted. In Scheidegger's view, such a stance amounts to delaying tactics by the judge.

"It's her fault. She ruled on one claim and didn't rule on the others, so the one claim goes up on appeal, the D.C. circuit decides it, and then she proceeds to rule on one more claim," he said. "This is deliberate stalling by the district judge."

Similar tactics appeared to be on display in the stay issued Friday evening on behalf of the mother, sister, and niece of Lee victim Nancy Mueller. The three women, who have publicly objected that Lee received a death sentence while co-defendant Chevie Kehoe did not, argued that they were being denied their right to attend the execution safely thanks to the pandemic.

The Seventh Circuit Court of Appeals overturned the district judge's support for that argument on Sunday, finding that the women had no legally guaranteed rights to attend. The Supreme Court has yet to issue a response to the family's appeal, filed Monday morning.

All of this back and forth—both rulings for and against Lee's executions are in appeals—will continue to forestall the execution of both Lee and two other convicted child-murderers originally scheduled to be executed this week. Lee continues a 23-year career on death row—nearly three times the length of his youngest victim's life.

These routine delays in capital cases, Scheidegger said, "reflect an attitude on the part of many federal judges that staying an execution is no big deal."

Published under: Death Penalty , \