UPDATE 15/7/15
David Zink was executed by the state of Missouri yesterday at 19:41.
Sindel said:
These cases are always very difficult. You’re dealing with a man 14 years after the crime. 14 years different. He’s not the same person he was. You can’t really stop the feelings and emotion that goes with that sometimes. We were optimistic, perhaps mistakenly so.
We saw Zink yesterday. He had become religious. He was a regular reader of the bible and he said he hoped there could be forgiveness for what he had done. He apologised to the victim’s family. He’d become resigned to what was going to happen.
***
Next week is the year anniversary of Joseph Wood’s execution. A convicted murderer, he was given a cocktail of drugs by the state of Arizona – a lethal injection. It took two hours for him to die. It was the third highly problematic execution in 2014, after the similarly harrowing deaths of Dennis McGuire in Ohio and Clayton Lockett in Oklahoma.
The execution induced wildly different reactions from states. Arizona suspended its death penalty programme. Utah re-introduced the option of execution by firing squad. Nebraska outlawed the death penalty completely earlier this year.
They were all responding, at least in part, to the same possibility – that the lethal injection in America would be ruled as unconstitutional. Last month that very nearly happened.
On 29 June, the Supreme Court ruled in the case of Glossip vs Gross. Three Oklahoma inmates on death row argued that the use of Midazolam – used in the three bungled executions last year – should be ruled as a “cruel and unusual punishment”. The eighth amendment of the American constitution expressly forbids this. They lost by five votes, to four.
Crucially, however, the details of the ruling have consequences for attorneys defending people on death row up and down the country.
Rick Sindel and Kay Parish represent death row inmate David Zink. In 2001, he murdered 19-year-old Amanda Morton after he had rear-ended her car off a freeway in Missouri. After raping her he admitted to strangling Morton and then cutting her spinal cord so that she would “remain that way”. He buried her body in a graveyard. The state of Missouri has set his date of execution for 14 July – tomorrow.
David Zink is due to be executed this week.
His legal team are in the last stages of appeal. His confession means that their main focus falls on the type of drugs that Missouri intends to use to kill Zink.
Sindel and Parish are one of the first, if not the first, lawyers who have to work with the ramifications of the Supreme Court’s ruling.
The most notable problem they have is with a specific judgement – that lawyers using the “cruel and unusual punishment” defence must suggest an alternative form of execution that is not cruel and unusual. Or as Parish says “lawyers must tell a court how to kill our clients”.
It puts lawyers like Sindel and Parish, who are viscerally against capital punishment, in a difficult position.
“It’s a pretty nasty ruling in my opinion, and one that puts those of us trying to prevent our clients from being forcibly subject to this human experimentation in quite an ethical quandary”, says Parish.
The decision suggests that method x cannot be cruel and unusual because you have not explained a better method. Or to put it another way, it asks people who believe that all methods of execution are cruel and unusual to accept the court’s contention that there are humane and dignified forms of execution.
After much deliberation Zink’s team decided last week not to suggest an alternative form of capital punishment.
It’s left Sindel and Parish in a fairly desperate position. Previously they had argued that Missouri’s lethal agent – a form of “pentobarbital” – was illegal. They claimed the drug was made by an unknown compounding pharmacy and was a “copy” of an FDA-approved drug, rather than a directly approved agent.
David Zink (left) as a young child.
They also put forward the argument that the method of execution violated state and federal controlled substance laws because the compounded pentobarbital is procured by an invalid “prescription” – written by a doctor who is contractually-bound to write the prescription and who conducts no medical examination.
It didn’t work.
As a result, another lawyer has decided to take one last roll of the dice. Justin Gelfand is an attorney with a very different legal specialism to Sindel and Parish. He’s a former federal tax prosecutor. Counterintuitively he thinks he might be able to save Zink’s life using his own specialisms in tax law.
Gelfand has prepared a public interest lawsuit using an obscure law, a Taxpayers Suit. The law has never been used in this context in Missouri legal history. It allows an action to be brought by a private individual to prevent state or federal government from unlawfully diverting public funds. It is generally used in cases of corruption or impropriety. It’s been filed by four (carefully chosen) plaintiffs, including a former member of the Missouri Senate and a Catholic nun, no less.
They argue that the suit “is not about the general legality of the death penalty in Missouri or elsewhere,” but has been filed because “Missouri public officials responsible for overseeing and administering executions are violating federal and state law using the tax dollars of hardworking Missourians.”
The suit makes particular reference to arguments made by Sindel, Parish and others – that the state of Missouri’s use of compound pentobarbital is illegal – arguments that had previously been dismissed by Missouri courts.
The hearing for the lawsuit will continue today, less than 24 hours before Zink’s execution date. We’ll know by tomorrow whether it’s been successful, though as it’s never been used before it’s a bit of a long shot. It marks the penultimate day of years of appeals that have fallen on deaf ears in Missouri courts.
The Supreme Court’s decision won’t stop lawyers like Sindel and Parish, but it does make their lives harder. “There are those of us who just won’t give up as long as there is breath in our bodies”, says Sindel. It’s the language of hope, perhaps, over expectation.
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