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Thread: William Jay Gollehon - Montana Death Row

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    William Jay Gollehon - Montana Death Row





    Facts of the Crime:

    Was sentenced to death in 1992 after he and Douglas Turner fatally beat fellow inmate Gerald Pileggi with a baseball bat at the Montana State Prison in 1990. Mr. Gollehon was already serving a 130-year sentence for killing a Billings woman in 1985. Mr. Gollehon also is serving time for his role in the 1991 riot at the prison.

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    On August 14, 2009, Gollehon filed an appeal in the US Ninth Circuit Court of Appeals over the denial of his habeas petition in Federal District Court.

    http://dockets.justia.com/docket/cir.../ca9/09-99011/

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    Ninth Circuit upholds Federal District Court's ruling:

    Opinion here

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    WILLIAM JAY GOLLEHON, Petitioner-Appellant,
    v.
    MICHAEL MAHONEY, Respondent-Appellee.

    No. 09-99011.

    United States Court of Appeals, Ninth Circuit.

    Argued and Submitted August 3, 2010. — Portland, Oregon.

    Filed November 22, 2010.

    Michael Donahoe, Senior Litigator, Federal Defenders of Montana, Helena, Montana, argued the cause for the petitioner-appellant and filed briefs. With him on the briefs was Anthony R. Gallagher, Federal Defender, Federal Defenders of Montana, Helena, Montana.

    John Paulson, Assistant Attorney General, Helena, Montana, argued the cause for the respondent-appellee and filed a brief. With him on the brief was Steve Bullock, Montana Attorney General, Helena, Montana.

    Before: Jerome Farris, Diarmuid F. O'Scannlain and Kim McLane Wardlaw, Circuit Judges.

    Opinion by Judge O'Scannlain.

    OPINION

    O'SCANNLAIN, Circuit Judge.

    We are called upon to decide whether a state court defendant lacked fair notice as a matter of federal Constitutional law that aiding and abetting a deliberate homicide would subject him to the death penalty in Montana.

    I

    A

    On September 2, 1990, the badly beaten body of inmate Gerald Pileggi was found lying in the exercise yard of the Montana State Prison in Deer Lodge, Montana. Several witnesses had seen inmates William Gollehon and Douglas Turner both strike Pileggi multiple times with baseball bats. An autopsy revealed that Pileggi died from massive head injuries, including a blow to the top of the head which had caved in part of his skull, as well as a blow to the side of his face which had collapsed his forehead, torn his brain, and ruptured his eyeball.

    Gollehon and Turner were jointly charged with deliberate homicide for the beating death of Pileggi. The information was later amended to add an alternative count of deliberate homicide by accountability. The difference between these counts, as explained by the Montana Supreme Court, is that the "charge of deliberate homicide by accountability allowed the jury to convict both men involved in the deliberate homicide without having to make the determination of who struck the fatal blow." State v. Gollehon, 864 P.2d 249, 261-62 (Mont. 1993) ("Gollehon I"). After a joint trial, the jury found Gollehon and Turner guilty of deliberate homicide by accountability. Both were sentenced to death.

    B

    On direct appeal, Gollehon argued that the trial court erred by sentencing him to death for deliberate homicide by accountability because no sentence for this crime was set by statute. Id. at 264. A divided Montana Supreme Court rejected this argument, holding that deliberate homicide by accountability is the same offense as deliberate homicide and therefore subject to the same penalties, including death. Id. at 264-65. The three dissenting justices contended that because no statute explicitly makes death an available penalty for deliberate homicide by accountability, the rule of lenity required that a fallback sentencing provision for felonies without a specified penalty should apply. Id. at 270-72 (Gray, J., dissenting).

    After state post-conviction proceedings, Gollehon filed a petition for a writ of habeas corpus in the federal district court arguing that his right to due process was violated because he lacked fair notice that deliberate homicide by accountability is punishable by death in Montana. The district court held that this claim was unexhausted and denied his petition on other grounds. Although, on appeal to this court, we affirmed the district court as to grounds it reached, we concluded that Gollehon had "sufficiently presented the federal issue to the state court." Gollehon v. Mahoney, 259 F. App'x 1, 3 (9th Cir. 2007) ("Gollehon II"). Accordingly, we remanded this final remaining claim to the district court for0 consideration on the merits.

    On remand, the district court denied Gollehon's motion for summary judgment on the due process claim, dismissed the habeas petition, and sua sponte denied a certificate of appealability ("COA"). See Gollehon v. Mahoney, 2009 WL 2148643 (D. Mont. July 15, 2009) ("Gollehon III"). Gollehon timely applied to this court for a COA pursuant to 28 U.S.C. 2253(c). After a round of briefing and argument, we now GRANT Gollehon's request for a COA as to the fair notice claim and proceed to consider the merits.Slack v. McDaniel, 529 U.S. 473, 483 (2000).

    Because Gollehon filed his habeas petition before the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), pre-AEDPA law applies. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Accordingly, we review the district court's denial of habeas relief de novo and the district court's factual findings for clear error. Summerlin v. Schriro, 427 F.3d 623, 628 (9th Cir. 2005) (en banc). Under pre-AEDPA law, we owe no deference to state-court rulings on questions of constitutional law, since "we simply resolve the legal issue on the merits, under the ordinary rules." Id. at 628 (internal quotation marks omitted). We presume the state court's findings of fact to be correct unless they are not fairly supported by the record. Id. at 629.

    II

    "Elementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose." BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996). To resolve Gollehon's fair notice claim, we must decide whether his death sentence for deliberate homicide by accountability was so "unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue" that it violated his right to due process under the Fourteenth Amendment. Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). "The beginning point for a Bouie analysis is the statutory language at issue, its legislative history, and judicial constructions of the statute." Webster v. Woodford, 369 F.3d 1062, 1069 (9th Cir. 2004). Accordingly, we begin with the text of the relevant statutes.

    Section 45-2-301 of the Montana Code provides that "[a] person is responsible for conduct that is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for the conduct as provided in section 45-2-302, or both." Mont. Code Ann. 45-2-301 (1990).6 Section 45-2-302, in turn, provides that "[a] person is legally accountable for the conduct of another when . . . either before or during the commission of an offense with the purpose to promote or facilitate the commission, the person solicits, aids, abets, agrees, or attempts to aid the other person in the planning or commission of the offense." Id. 45-2-302(3). Gollehon does not contest that because he aided and abetted the killing of Gerald Pileggi, he is legally accountable for deliberate homicide pursuant to section 45-2-302.7 We therefore consider whether section 45-2-301 provided Gollehon with fair notice that a person "responsible" for an offense by way of accountability is subject to the penalty specified for that offense.

    To determine the plain meaning of a statute, we traditionally refer to dictionaries in use at the time of the statute's enactment. See Lamar v. United States, 241 U.S. 103, 113 (1916). Because Montana's accountability statutes were enacted in 1973, we turn to various contemporaneous definitions. The version of Black's Law Dictionary in effect at the time defined "responsible" as "[l]iable, legally accountable or answerable." Black's Law Dictionary 1060 (4th ed. 1951). Webster's New Collegiate Dictionary defined "responsible" as "liable to legal review or in the case of fault to penalties," and "liable to be called on to answer." Webster's New Collegiate Dictionary 986-87 (1973). Section 45-2-301 thus made clear that a person who is "responsible" for an offense by way of accountability is liable for that offense and must answer for it by way of a penalty.

    Gollehon contends that the only applicable penalty was Montana's default penalty for felonies for which "no penalty is otherwise provided," i.e., up to 10 years in the state prison, a fine of up to $50,000, or both. Mont. Code Ann. 46-18-213. But no penalty was specified for accountability because accountability is not a separate offense requiring a separate penalty. Rather, it is a theory of liability for an offense for which penalties were already provided by the legislature.8 In the case of deliberate homicide, the legislature unambiguously provided for a penalty of death, life imprisonment, or 10-100 years' imprisonment. Id. 45-5-102(2). Consequently, we conclude that Montana's accountability statutes, together with the deliberate homicide statute, made it "reasonably clear at the relevant time" that Gollehon's conduct would subject him to the death penalty. United States v. Lanier, 520 U.S. 259, 267 (1997).

    III

    Although we believe that Montana's criminal statutes, standing alone, supplied all the fair notice that the Due Process Clause requires, we proceed to consider whether prior judicial decisions also contributed to such notice. See id. (holding that the "touchstone" of the due-process inquiry "is whether the statute, either standing alone or as construed" provided fair notice (emphasis added)).

    As an initial matter, we address Gollehon's contention that he lacked fair notice because "no decision of the Montana Supreme Court (up until [his] case) even considered whether an offender convicted of deliberate homicide by accountability could be sentenced to death." Mot. for COA at 12. "Due process is not, however, violated simply because the issue is a matter of first impression." Ponnapula v. Spitzer, 297 F.3d 172, 183 (2d Cir. 2002). So long as "prior decisions gave reasonable warning" that the law would be applied in a certain way, they need not present a "fundamentally similar" factual scenario. Lanier, 520 U.S. at 269 (internal quotation marks omitted); see also Rose v. Locke, 423 U.S. 48, 51 (1975) (per curiam) (noting that "the existence of previous applications of a particular statute to one set of facts" is not required to survive a "lack-of-fair-warning challenge").

    Here, prior decisions gave Gollehon reasonable warning that aiding and abetting a deliberate homicide would subject him to the death penalty.9 For example, in Matter ofB.D.C., 687 P.2d 655 (Mont. 1984), the Montana Supreme Court explained that accountability "is merely a conduit by which one is held criminally accountable for the acts of another." Id. at 657. As such, accountability is not a "separate offense" from "the underlying offense which has been physically committed by another, but for which the defendant is equally responsible." Id.; accord State v. Zadick, 419 P.2d 749, 751 (Mont. 1966) (holding that aiding and abetting a crime is merely a "different way[ ] of committing that crime"). The Montana Supreme Court put Gollehon on notice that a conviction of deliberate homicide by accountability would make him "liable as a principal actor in that homicide" and, accordingly, subject to the death penalty. Gollehon I, 864 P.2d at 266.

    Moreover, prior to Gollehon's offense, the Montana Supreme Court had explicitly adopted the Illinois Supreme Court's construction of Illinois's accountability provisions, from which Montana's provisions were adopted. See State v. Oppelt, 580 P.2d 110, 114 (Mont. 1978); State v. Murphy, 570 P.2d 1103, 1105 (Mont. 1977). By 1983, the Illinois Supreme Court "ha[d] already held that the death penalty may be constitutionally imposed for murder convictions based on accountability." People v. Garcia, 454 N.E.2d 274, 284 (Ill. 1983); see also People v. Ruiz, 447 N.E.2d 148, 154 (Ill. 1983) (affirming death sentence for defendant convicted of murder by accountability). These Illinois cases provided further notice to Gollehon that a conviction under an accountability theory would not automatically immunize him from the death penalty. See Locke, 423 U.S. at 52 (concluding that "the Tennessee Supreme Court had given sufficiently clear notice" that it would follow Maine's construction of a statute "which the Tennessee court had at that point twice equated with its own").

    Numerous Montana decisions also made clear that persons convicted of felonies by accountability did not receive the 10-year and/or $50,000 default penalty set forth in section 46-18-213, which Gollehon claims was applicable. See, e.g., State v. Senn, 795 P.2d 973, 974 (Mont. 1990) (20 years for forgery by accountability); State v. Randall, 772 P.2d 868, 869 (Mont. 1989) (15 years for robbery by accountability), overruled on other grounds by State v. Ayers, 68 P.3d 768 (Mont. 2003); State v. Holzapfel, 748 P.2d 953, 954 (Mont. 1988) (20 years for sale of dangerous drugs by accountability), overruled on other grounds by State v. Hardaway, 36 P.3d 900 (Mont. 2001); State v. Riley, 649 P.2d 1273, 1274 (Mont. 1982) (20 years suspended for deliberate homicide by accountability); State v. Powers, 645 P.2d 1357, 1360 (Mont. 1982) (same).10 Furthermore, Gollehon can point to no published case in which a defendant was sentenced to the default penalty for any felony, let alone felonies by accountability. We therefore reject the contention that Gollehon reasonably expected to receive the default penalty for aiding and abetting a deliberate homicide. See Free v. Peters, 12 F.3d 700, 702-03 (7th Cir. 1993) (rejecting a murderer's fair-notice challenge to his death sentence given that "there were no published decisions supporting [his] interpretation" of the felonymurder statute).

    IV

    We next consult the history of Montana's treatment of aiders and abettors to determine whether the death penalty was an unfair surprise to Gollehon.

    At common law, the participants in a felony were classified into the following categories:

    (1) first-degree principals, those who actually committed the crime in question; (2) second-degree prin-cipals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007).

    Generally, "a person in any one of the four categories could be convicted and subjected to the penalties authorized for commission of the felony." 2 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law 6.6 (1986); see also 4 William Blackstone, Commentaries *39 (explaining that "the general rule" is "that accessories shall suffer the same punishment as their principals: if one be liable to death, the other is also liable"); United States v. Gooding, 25 U.S. 460, 469 (1827) ("[I]t is the known and familiar principle of criminal jurisprudence, that he who commands, or procures a crime to be done, if it is done, is guilty of the crime, and the act is his act."); State v. Geddes, 55 P. 919, 925 (Mont. 1899) ("[T]he common law of crimes makes no distinction in the punishment between a principal and an accessory; the offense of each being felony, of which the penalty was originally death.").

    Montana, like "all States and the Federal Government," has "expressly abrogated the distinction among principals and aiders and abettors in the second and third categories" and "treats those who fall into the first three categories alike."Duenas-Alvarez, 549 U.S. at 189-90; see also id. at 195 App. A (citing Mont. Code Ann. 45-2-301, 45-2-302); Mont. Code Ann. 45-2-302 cmt. (noting that the precursors to section 45-2-302 "had as their primary purpose the elimination of the elaborate common law distinctions between principals in the first degree, principals in the second degree, and the accessories before the fact"). Cases spanning almost a century before Gollehon's offense provided ample warning that aiding and abetting an offense is another way of committing that offense, and is punished accordingly. See, e.g., In re McMaster, 529 P.2d 1391, 1393 (Mont. 1974) ("[I]t is sufficient to prove that appellant aided and abetted in the commission of the crime, thereby making appellant a principal and guilty of that crime itself."); Zadick, 419 P.2d at 751 ("[A]ll persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet its commission, . . . must be prosecuted, tried, and punished as principals . . . ." (internal quotation marks omitted)); State v. Simon, 247 P.2d 481, 485 (Mont. 1952) ("[I]t is immaterial whether the proof shows that the accused actually was the perpetrator of the offense or whether he aided and abetted. In either case he is a principal and may be tried and convicted as such."); State v. McClain, 246 P. 956, 958-59 (Mont. 1926) ("Our law provides that he who . . . aids, assists, advises, or encourages shall be considered a principal, and shall be punished accordingly." (internal quotation marks omitted)); State v. Gleim, 41 P. 998, 998 (Mont. 1895) ("Any person who stands by, and aids, abets, or assists . . . shall be deemed a principal offender, and shall be punished accordingly." (internal quotation marks omitted)).

    By "abandon[ing] completely the old common law terminology and simply provid[ing] that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime," section 45-2-302 represents a "much more modern approach to the entire subject of parties to crime." LaFave & Scott, supra, 6.6 & n.99 (citing Mont. Code Ann. 45-2-302). This modern approach does not purport, however, to alter the longstanding rule that aiders and abettors are punishable to the same extent as perpetrators. Indeed, the drafter's comment to section 45-2-302 explains that this provision "accepts the approach of the existing law and endeavors to develop it in full and systematic fashion." Mont. Code Ann. 45-2-302 cmt. The imposition of the death penalty in Gollehon's case thus comported with well-settled principles of accomplice liability.

    V

    The dissent in Gollehon I does not compel a contrary conclusion. The three dissenting justices contended that the majority had erroneously focused on "the nature of `accountability' rather than on Montana's sentencing statutes." Gollehon I, 864 P.2d at 270 (Gray, J., dissenting). Because these statutes did not "clearly provide[ ] for the imposition of the death penalty under these circumstances," the dissent argued that the rule of lenity required the application of the default penalty. Id.

    The rule of lenity "is simply a canon of statutory construction." United States v. LeCoe, 936 F.2d 398, 402 (9th Cir. 1991). As such, we have no power to apply it because we are bound by the Montana Supreme Court's determination that there is no statutory ambiguity warranting its application. See Sabetti v. Dipaolo, 16 F.3d 16, 19 (1st Cir. 1994). Furthermore, even if we could apply it, we could do so only "if, after considering text, structure, history, and purpose, there remains a `grievous ambiguity or uncertainty in the statute.'" Barber v. Thomas, 130 S.Ct. 2499, 2508 (2010) (quoting Muscarello v. United States, 524 U.S. 125, 139 (1998)). We cannot say, after "seizing every thing from which aid can be derived," that there remains any ambiguity, let alone grievous ambiguity, as to the penalties applicable to aiders and abettors in Montana. United States v. Nader, 542 F.3d 713, 721 (9th Cir. 2008) (internal quotation marks omitted).

    Gollehon "has not pointed to anything in the federal Constitution—other than, of course, the `fair notice' guaranty, which, we have just held, is satisfied here—that would require a state court to apply the rule of lenity when interpreting a state statute." Sabetti, 16 F.3d at 19. Therefore, the dissent in Gollehon I is of no assistance to him.

    VI

    The relevant statutory text, decisional law, and centuries of Anglo-American jurisprudence made it clear at the relevant time that aiding and abetting an offense would subject a person to the same penalty available for that offense, not a separate and lesser penalty. Therefore, the Montana courts' conclusion that deliberate homicide by accountability is a death-eligible offense is far from a "radical and unforeseen departure from former law," but rather, a perfectly logical extension of it. Webster, 369 F.3d at 1069 (internal quotation marks omitted).

    For the foregoing reasons, the judgment of the district court denying Gollehon's motion for summary judgment and dismissing Gollehon's habeas petition is AFFIRMED.

  5. #5
    I believe this puts Mr. Gollehon in line to be executed. No news articles have mentioned anything about a possible upcoming execution for Mr. Gollehon nor anything about his other possible avenues for appeal but it certainly looks like he has exhausted all his legal remedies for which he is entitled to. Every state is different in regards to the appellate process, I'm not sure if Montana law allows for multiple filings of successive PCR's and habeas corpus petitions.

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    On October 3, 2011, the US Supreme Court denied Gollehon's certiorari petition.

    Lower Ct: United States Court of Appeals for the Ninth Circuit
    Case Nos.: (09-99011)
    Decision Date: November 22, 2010
    Rehearing Denied: March 7, 2011

    http://www.supremecourt.gov/Search.a...s/10-10968.htm

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    State asks judge to back execution changes

    The state has asked a judge to back the changes it made to its lethal-injection procedures and dismiss the claims of two death-row inmates and a civil-liberties group that the revisions still put condemned prisoners at risk of unnecessary suffering.

    The American Civil Liberties Union, Ronald Allen Smith and William Gollehon are rehashing old arguments and improperly bringing up new ones in asking District Judge Jeffrey Sherlock to rule the execution changes unconstitutional, Assistant Attorney General Mark Fowler said in Fridays filing.

    The changes made in January by the Montana Department of Corrections were done to address the clearly defined constitutional concerns Sherlock stated in a September order, Fowler said.

    The biggest revisions include going from a three-drug lethal-injection cocktail to one that uses two drugs, and employing a qualified person to determine whether an inmate has lost consciousness.

    But the inmates and the ACLU apparently believe they have license to raise any argument that newly comes to mind and attempt to bring back old arguments that already have been decided by the judge and should be barred, Fowler said.

    Sherlock ruled in September that state law required two drugs to be used, not three, and the previous procedures did not ensure qualified individuals were verifying the inmate was incapable of feeling pain before the final drugs were administered.

    The new procedure calls for an injection of the barbiturate sodium pentothal to put the inmate into a coma, followed by an injection of a paralytic agent called pancuronium bromide.

    The revisions eliminate the third drug, potassium chloride, which is used to stop an inmates heart.

    Sodium pentothal is no longer manufactured in the U.S., and it cant be imported. The Department of Corrections said another barbiturate, pentobarbital, can be substituted for sodium pentothal.

    The plaintiffs argued that pentobarbital is not an adequate substitute for sodium pentothal and the two-drug procedure creates the risk that the inmate will suffer before death. Many states now use a one-drug procedure, the inmates attorneys argued.

    The changes were made without input from medical professionals and the revisions dont spell out how the warden will choose the qualified person to monitor the inmate or how the drugs will be administered, according to the inmates attorneys.

    Fowler dismissed all those claims, saying they werent relevant to the judges past order or should have been brought up earlier.

    A 5-gram dose of pentobarbital will cause death in virtually anybody, and the subsequent injection of pancuronium bromide will prevent the person from being able to breathe. Both pentobarbital and pancuronium have been upheld by Montana and other courts in executions, Fowler said.

    The Department of Corrections is exempt from the normal rule-making process when it comes to public input, and death-row inmates dont have the right to set the rules on how they are to be executed, Fowler argued.

    The operation of penal institutions is primarily based upon a military model, he said.

    http://www.greatfallstribune.com/vie...cution-changes
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    May 10, 2014

    Judge: Dispute over Montana execution drug will go to trial

    HELENA — A judge has upheld most of the changes Montana corrections officials made to execution methods after a legal challenge by two death-row inmates, but he said a dispute over one of the drugs used in lethal injections should be decided at trial.

    Montana last year changed its lethal-injection method from a combination of three drugs to two after District Judge Jeffrey Sherlock of Helena noted state law specifically called for two drugs to be used.

    Corrections officials also rewrote execution protocols so that one person with medical training administers the lethal mixture and another qualified person checks the inmate's consciousness.

    No executions have been performed in Montana since the changes.

    Attorneys for inmates Rodney Allen Smith and William J. Gollehon challenged the changes on multiple fronts, most of which Sherlock dismissed in Thursday's order.

    But one argument stuck — that the state's substitute for a drug no longer available in the U.S. for executions may not be adequate.

    The new procedure calls for an injection of sodium pentothal to put the inmate into a coma, followed by an injection of a paralytic agent called pancuronium bromide.

    Sodium pentothal is no longer manufactured in the U.S., and it can't be imported. The Department of Corrections said another barbiturate, pentobarbital, can be substituted for sodium pentothal.

    The plaintiffs argued that pentobarbital is not an "ultra-fast-acting" barbiturate that is required by state law to be administered in executions.

    Pentobarbital is fast-acting but there is a dispute about what the Legislature meant by using the words "ultra-fast-acting" and whether the drug meets that definition, Sherlock wrote, and that must be decided at trial.

    Sherlock wrote that other claims raised by the plaintiffs included absurd interpretations of the law, such as requiring the two drugs in the lethal blend to be mixed together instead of administered one after the other.

    Another suggestion by the plaintiffs that a one-drug execution would be more humane is ironic, Sherlock wrote, given the plaintiffs previously advocated for a two-drug procedure.

    Sherlock said he is mindful of the importance of a case involving the death penalty, but he told the plaintiffs this would be the last time he addresses new claims they bring up against the state's execution methods.

    "Plaintiffs cannot keep pointing out flaws in the (methods) only to have the state correct those flaws and then be faced with a new round of complaints that could have been addressed earlier," Sherlock wrote.

    http://missoulian.com/news/state-and...a4bcf887a.html

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    Montana death row inmates await court decision over lethal injection

    Montana is not a state which executes prisoners on a regular basis. Only three people have been put to death since 1976.

    Since 1995, the state has used lethal injection as its method of capital punishment. Prior to that, it relied upon death by hanging.

    Lethal injection is becoming a hot-button issue across the country as more attention is placed on the drugs being used to execute prisoners. Just last week, the U.S. Supreme Court heard arguments in a case over a drug that has been used in several botched executions.

    The case concerns a plea of death row inmates in Oklahoma to outlaw the sedative midazolam. Attorneys argue it is ineffective in preventing pain from other drugs used in lethal injections.

    Montana uses the sedative pentobarbital instead of midazolam in executions, but this drug is also at the center of a lawsuit which has stopped the state from being able to carry out capital punishment.

    The two men who sit on Montana's death row, Ronald Allen Smith and William Jay Gollehon, argue that pentobarbital is not "ultra" fast-acting and therefore, unconstitutional.

    “There's a huge amount of literature on this which talks about pentobarbital being fast-acting but not ultra fast-acting,” said Ron Waterman, the lead attorney for Smith and Gollehon.

    When the state's statute was originally written, sodium thiopental was still available. Sodium thiopental is considered an ultra fast-acting drug, but in 2011, the manufacturer of the drug ceased production and the state was forced to modify its lethal injection protocol.

    The revised method allowed for the substitution of pentobarbital,which in a press release dated August 15, 2011, Department of Corrections officials said had “survived court challenges and been used successfully in other states.”

    But Waterman argues that pentobarbital cannot be classified as ultra-fast acting. The attorney said most states have since modified their statutes to include a broader definition of which drugs can be used. But Montana is unique in that it's one of the few states that still have a requirement of the ultra-fast acting barbiturate.

    “We believe the state still does not have anyone that is willing to say pentobarbital is an ultra-fast acting barbiturate,” said Waterman. “If you don't administer an effective drug to bring about a death, then the paralytic agent will actually cause an individual to suffocate and that death would be a long, protracted suffocation death.”

    Waterman has been waging war over Montana's lethal injection protocol, on behalf of Smith and Gollehon, for the last seven years. But he's been entrenched in the issue for over two decades. He first got involved back in the 90's when his client, Duncan McKenzie, was put to death.

    “I was in the execution chamber with him at the time of his death,” said Waterman. “I had been morally opposed to the death penalty beforehand but became involved with that execution.”

    McKenzie was given the death sentence for the 1974 murder of schoolteacher Lana Harding in the small town of Conrad. When he was executed in 1995, it was the first time Montana used lethal injection and the first execution the state carried out in five decades.

    “We had a hanging execution in 1945, we then went 50 years before we had another execution with Duncan McKenzie,” said Waterman.

    Since then, the state has executed two more prisoners by lethal injection, Terry Langford in 1998 and David Dawson in 2006. Both men instructed their lawyers to stop all appeals and told the state they were ready to die.

    Waterman supports abolition of the death penalty, saying it no longer serves a purpose.

    “We've rarely used the death penalty, taking it off the books doesn't affect the criminal justice system at all. It just removes what's cruel and unusual,” he said.

    Bills to do away with the death penalty have been proposed in every state legislature since 1995, but have never succeeded. This year was the closest death penalty opponents have ever come, with HB 370 deadlocking in the House on a 50-50 vote.

    But Waterman is not relying on the state legislature to save his clients. A hearing in Smith vs. Batista is set for July and Waterman said he feels confident they will prevail in getting a permanent injunction against Montana's current lethal injection protocol.

    Whatever happens in court, Waterman realizes it's a matter of life or death for Smith and Gollehon.

    “For both of these individuals everything hinges on this case,” he said.

    We reached out to the Montana State Prison and Department of Corrections for comment. Both agencies referred us to the Attorney General's Office, where a spokesman said Tim Fox would not comment on pending litigation.

    http://www.ktvq.com/story/28971083/d...thal-injection

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    Montana death-row inmates question use of execution drug

    HELENA – Attorneys for two Montana death-row inmates are questioning whether state Department of Justice officials told a witness to change his testimony to bolster their failed argument that a substitute drug met the legal requirements for use in executions.

    District Judge Deann Cooney has scheduled a Nov. 18 hearing on the issue raised by ACLU of Montana Legal Director Jim Taylor, one of the lawyers representing inmates Ronald Allen Smith and William Gollehon.

    "Had the expert not changed his testimony, we would not have gotten to trial," Taylor said. "We want to know what happened. We just want a hearing and we've been trying to get a hearing for a year."

    Department of Justice spokesman John Barnes did not immediately return a telephone message seeking comment.

    In court documents filed in response to the inmates' request to preserve evidence and re-open the case, Assistant Attorney General Ben Reed said the accusation is groundless and Auburn University pharmacy school dean Roswell Lee Evans' testimony was consistent.

    At the trial last year, District Judge Jeffrey Sherlock effectively blocked executions in Montana after ruling that one of the two drugs to be used in lethal injections did not meet a requirement under state law to be an "ultra-fast-acting barbiturate." The state does not have an alternative barbiturate to use in lethal injections.

    Montana originally used sodium pentothal as the barbiturate, but that drug is no longer available in the U.S. for executions. State officials named pentobarbital as a substitute.

    State attorneys argued unsuccessfully at trial that pentobarbital, which has never been used in a Montana execution, meets the requirement. Their expert, Evans, wrote an expert declaration in March 2015 that did not address the "ultra-fast acting" question. In April 2015, he supplemented that declaration by adding pentobarbital could be considered "ultra-fast acting" but that it is classified differently.

    Taylor wrote in his request to re-open the case in March that Evans testified in a separate case in Tennessee in which he was asked about his testimony in the Montana case. According to a transcript, Evans was asked whether the Montana attorney general needed him to say pentobarbital was ultra-fast acting and he wrote that it could be.

    "Could be," Evans answered. "That's not how it's classified."

    Based on that testimony, Taylor wrote, it appears state attorneys persuaded Evans to change his original declaration.

    "A fair reading of Evans' testimony ... is that someone from the Montana Attorney General's Office told Evans that what he had said in his first expert report was insufficient, and that he needed to change his opinion to fit what the defense required," Taylor wrote.

    Reed, in response, wrote that Evans' testimony was consistent because barbiturates are typically classified by duration – "ultra-short acting" – and not rapidity – "ultra-fast acting." When read together, his statements are consistent and explain that while it is not classified as "ultra-fast acting" it could be described that way because the drug's onset is incredibly fast.

    Evans' "could be" answer to the Tennessee attorney's question addressed what Evans actually wrote in the declaration, not whether the Montana attorney general's office needed him to change his testimony.

    Taylor said the inmates' attorneys took their concerns to the attorney general's office. They received a response in February that "we took what we believed to be the appropriate actions with the DOJ lawyers involved in the death penalty litigation." The email also said that the state's dealings with Evans had ended.

    Taylor said the actions the state may have taken against its attorneys in the case merit investigation by the court.

    Reed responded that the argument is "nebulous and speculative."

    http://missoulian.com/news/local/mon...4dcd6b2bf.html

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