NEWS (5/​24 and 5/​26/​21) — Washington, D.C.: The U.S. Supreme Court issued rul­ings in two death-penal­ty cas­es, deny­ing a defense peti­tion to review an ​“as-applied” chal­lenge to Missouri’s lethal-injec­tion pro­to­col and grant­i­ng a pros­e­cu­tion peti­tion to delay enforce­ment of a state-court rul­ing that had void­ed the con­vic­tion of an Oklahoma death-row prisoner.

On May 24, the Court denied cer­tio­rari in Ernest Johnson v. Precythe, declin­ing to review whether exe­cu­tion by lethal injec­tion con­sti­tutes cru­el and unusu­al pun­ish­ment for a pris­on­er who is like­ly to expe­ri­ence severe seizures as a result of epilep­sy from a brain tumor and dam­age caused by sig­nif­i­cant brain surgery. Justices Breyer, Sotomayor, and Kagan dissented.

Required by U.S. Supreme Court prece­dent to offer an alter­na­tive method for his own exe­cu­tion, Johnson had pro­posed that Missouri exe­cute him by nitro­gen gas, a method autho­rized in the state’s exe­cu­tion statute. However, in a 5 – 4 deci­sion in Bucklew v. Precythe in 2019, the con­ser­v­a­tive wing of the Court ruled that nitro­gen gas was ​“unavail­able” to Missouri as an exe­cu­tion method despite its statu­to­ry autho­riza­tion because it had nev­er before been used to car­ry out an exe­cu­tion. The Court sug­gest­ed that a death-row pris­on­er who faced a seri­ous risk of pain from lethal injec­tion should nev­er­the­less have lit­tle trou­ble propos­ing an avail­able alter­na­tive method of exe­cu­tion, cit­ing the avail­abil­i­ty of the fir­ing squad as an exam­ple. In light of Bucklew, Johnson sought to amend his lethal-injec­tion chal­lenge to pro­pose exe­cu­tion by fir­ing squad. The U.S. Court of Appeals for the Eigth Circuit denied Johnson leave to amend and the U.S. Supreme Court refused to con­sid­er his appeal.

On May 26, the jus­tices grant­ed a motion filed by Oklahoma pros­e­cu­tors to stay enforce­ment of a state appeals court rul­ing that had applied the Court’s land­mark trib­al sov­er­eign­ty deci­sion in McGirt v. Oklahoma to void the state con­vic­tion of death-row pris­on­er Shaun Michael Bosse for mur­ders that took place on trib­al lands. Again, Justices Breyer, Sotomayor, and Kagan dissented.

McGirt ruled that Congress had nev­er dis­es­tab­lished the reser­va­tion cre­at­ed by treaty between the United States and the Muscogee (Creek) Nation, and that under long-stand­ing fed­er­al law, major crimes com­mit­ted by or against Native Americans on ​“Indian lands” could be pros­e­cut­ed only in fed­er­al court. After deter­min­ing that Congress had nev­er dis­es­tab­lished the Chickasaw Reservation, the Oklahoma Court of Criminal Appeals ruled that Oklahoma lacked juris­dic­tion to pros­e­cute Bosse for the mur­ders of three mem­bers of the Chickasaw Nation with­in the his­tor­i­cal bound­aries of the tribe’s reservation.

The Oklahoma Attorney General’s office unsuc­cess­ful­ly argued in state court that Oklahoma retained con­cur­rent juris­dic­tion to try non-Native Americans for crimes com­mit­ted on trib­al lands, irre­spec­tive of the race of the vic­tims. The Chickasaw Nation argued that two cen­turies of U.S. statutes and caselaw had con­sis­tent­ly pro­vid­ed that the fed­er­al gov­ern­ment had exclu­sive juris­dic­tion over major crimes com­mit­ted by or against Indians in Indian Country. 

The Supreme Court stayed enforce­ment of the deci­sion in Bosse’s case ​“pend­ing the time­ly fil­ing and dis­po­si­tion of a peti­tion for a writ of cer­tio­rari” by Oklahoma prosecutors.

NEWS (5/​21/​21) — Nevada: The Nevada Supreme Court has over­turned the death sen­tence imposed on Tracy Petrocelli in his May 2019 cap­i­tal resen­tenc­ing tri­al. In a 4 – 2 deci­sion, the court ruled that the tri­al court had com­mit­ted clear error requir­ing vaca­tion of Petrocelli’s death sen­tence when it sub­mit­ted to the jury a ver­dict slip that mis­stat­ed the law on what the jury must find to impose a life sentence.

The ver­dict slip informed the jury that, to impose a life sen­tence, it must find ​“that any mit­i­gat­ing cir­cum­stance or cir­cum­stances are not suf­fi­cient to out­weigh the aggra­vat­ing cir­cum­stance found.” That was actu­al­ly the stan­dard for impos­ing a death sen­tence. Justice Douglas Herndon, joined by Justice Ron D. Parraquire, dis­sent­ed on the grounds that Petrocelli’s coun­sel had not object­ed to the instruc­tion and had ​“clear­ly focused their penal­ty hear­ing strat­e­gy on request­ing mer­cy as opposed to mak­ing any sub­stan­tial pre­sen­ta­tion that Petrocelli was not eli­gi­ble for the death penalty.”

Petrocelli was ini­tial­ly con­vict­ed and sen­tenced to death in Reno, Nevada in 1982 for a mur­der com­mit­ted dur­ing the course of an armed rob­bery. The U.S. Court of Appeals for the Ninth Circuit over­turned his death sen­tence in 2017, find­ing that the pros­e­cu­tion had uncon­sti­tu­tion­al­ly sent its psy­chi­a­trist to the prison to con­duct a men­tal health eval­u­a­tion of Petrocelli to deter­mine his com­pe­ten­cy to stand tri­al with­out notice to or per­mis­sion from defense coun­sel, and the psy­chi­a­trist then failed to advise Petrocelli that he had the right to coun­sel and that any state­ments could be used against him at tri­al, and then tes­ti­fied in the penal­ty phase of tri­al that Petrocelli was incurably dangerous.