Supreme Court Grants Stay of Executions - Defendants argue Ineffective Assistance of Counsel and Lethal Drug Choice

For the second time this week the U.S. Supreme Court has stayed an imminent execution by lethal injection. According to an article in the ABA Journal, both men claim ineffective assistance of counsel prevented them from arguing their innocence.

Ineffective assistance of counsel at trial and on direct appeal violates the Sixth Amendment right to a fair trial. No precise definition exists for "ineffective assistance of counsel." Rather, each case must be judged on its own facts.

To prevail on a claim that he received ineffective assistance, a defendant must show that:

(1) counsel's performance was deficient, and
(2) the deficient performance prejudiced the defense (i.e. but for the deficient performance, the result of the proceeding would have been different).

The two death row inmates also contend that a planned new execution drug, pentobarbital, is neither appropriate nor the subject of adequate protocols. Although used to euthanize animals, it reportedly has not been routinely used in human anesthesia for decades.

As previously reported on our blog, sodium thiopental, a drug ordinarily used in executions as part of a lethal drug cocktail, is in short supply in the U.S. The shortage requires states to find alternatives if they are going to apply the death penalty. Problematic, however, is that although pentobarbital is used to euthanize animals, it reportedly has not been routinely used in human anesthesia for decades.

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