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Supreme Court Puzzles Some With Mixed Answers on Lethal Injection

But it did say it would hear Hill's narrower claim, which had been rejected by a federal appeals court in Atlanta: that he should have an opportunity to argue in the lower courts that Florida's lethal-injection formula, which is similar to that used in other jurisdictions, would cause him excessive pain, thus violating his civil rights.

The next day, the court's unanimity fractured. It denied a stay of execution to Indiana death-row inmate Marvin Bieghler, who was appealing the Indiana Supreme Court's rejection of his broad challenge to the constitutionality of lethal injection.

Two justices, John Paul Stevens and Ruth Bader Ginsburg dissented, signaling that they thought the court should hear the broader constitutional claim, too.

Bieghler then brought the broad claim to the lower federal courts, winning a stay of execution from the federal appeals court in Chicago. That court based its 2 to 1 decision on the Supreme Court's grant of a stay to Hill. But the majority of the appeals court said it had acted only because it was not "comfortably certain" about the meaning of the court's stay for Hill.

The next day, the Supreme Court overturned that stay -- with dissents by Stevens, Ginsburg and Stephen G. Breyer -- and Bieghler was put to death. That ruling is the clearest indication that the court is, indeed, interested only in the narrow claim raised by Hill -- that there should be a chance to raise a civil rights challenge to the injection formula.

On Jan. 31, the court granted a stay to another Florida inmate, Arthur D. Rutherford, who was in an identical position to Hill.

A day later, on Feb. 1, the court denied a stay for Texas's Jaime Elizalde Jr. -- but refused to vacate a stay for Missouri's Michael A. Taylor that had been imposed by the federal court of appeals in St. Louis. This time, Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas dissented.

Taylor had raised a Hill-like narrow claim early in his appeals process but had been given only a hasty, last-minute hearing on the claim in federal district court, said Thomas C. Goldstein, a Washington lawyer who represents a Tennessee death-row inmate at the Supreme Court. This apparently prompted the appeals court to give him a stay and a majority of the Supreme Court, including new Justice Samuel A. Alito Jr., to let it stand.

The bottom line appears to be, Goldstein said, that while the court will not block executions for those raising only a broad claim that lethal injection is cruel and unusual, it has agreed to decide whether challenges to a lethal-injection formula may be raised as a civil rights lawsuit, and is therefore blocking executions for people who have not yet had a sufficient day in court on that claim.

Meanwhile, however, it is also not stopping executions in which death-row inmates seem to be raising the narrow issue only at the last minute, to take advantage of its decision to hear Hill's case. In a 2004 opinion, the court had expressed opposition to such latecomers.

That would explain why the court denied Texas's Neville a stay of execution -- with no recorded dissents.

With 22 executions scheduled by the states and the federal government before the end of June, when the court's term ends, lower courts remain caught up in the lethal-injection issue.

In California, Angelo Michael Morales is challenging that state's injection formula before a San Jose federal district judge. His execution is set for Feb. 21.

In Maryland, Vernon L. Evans Jr. has received a stay of execution from the Court of Appeals so that it could decide several claims, related both to alleged racial discrimination and to the state's lethal-injection protocol. But his lawsuit is based on alleged violations of state rather than federal law.

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