Such an alternative, Chief Justice John Roberts wrote in his majority opinion in Baze, must be "feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain." What no justice ever claimed in Baze, however, was that it was the constitutional duty of the death row inmate to come up with an alternative method of execution as a condition of making an Eighth Amendment challenge. That duty is something the 8th Circuit majority in Lombardi invented from the penumbras they perceived as emanating from Baze so that they could protect Missouri from having to disclose information about its lethal drugs.
The Ethicists' Response
So there is a strong case for overturning Lombardi on straight constitutional grounds. It's an erroneous ruling that misstates Supreme Court precedent in a straightforward way, and does so in order to deprive a capital defendant of his right to learn basic information about the drugs a state wants to use against him. But the Lombardi decision also has generated a surprising and strong response from the legal ethics community because of the "lose-lose" choice it demands of the lawyer representing the death row inmate.
Last Thursday, in support of the efforts to get the justices in Washington to accept Lombardi for review, a group of legal ethicists at Yale filed their friend-of-the-court brief. Here is the link to the Yale brief, and here is the heart of the argument the ethicists present:
The Eighth Circuit’s interpretation of Baze – specifically, its suggestion that a lawyer must propose an alternative means by which his client is to be executed in order to meet the pleading standard – flies in the face of this professional requirement. It forces the lawyer to abandon the client’s set objective for the representation – and instead, to concede the constitutionality of another, untested method of execution – in spite of the fact that no lawyer should be required, in the face of a method of execution that the client asserts is unconstitutional, to advocate for an alternative.
As such, the Eighth Circuit’s interpretation puts lawyers representing death row inmates in a lose-lose situation when their clients have not conceded that there is any constitutional method of execution now that the method Missouri used in the past is no longer available.
The Yale brief continues:
The Eighth Circuit’s interpretation of Baze at issue here would place a lawyer under a severe and darkly ironic conflict: the principal goal of any lawyer representing a death row client is to prevent his client’s execution; yet the Eighth Circuit’s interpretation of the pleading rule would require the lawyer to actively advocate for a particular means of achieving his client’s death in the course of attempting to avert it.
Placed in such a position, no lawyer could effectively argue both for and against his client’s execution. Moreover, requiring him to argue in favor of it is decidedly unjust on its own terms, prohibiting him from “enforcing [his] client’s rights” – or pursuing his client’s wishes – “to the fullest extent….” (citation omitted by me).
And, finally, another compelling argument from Yale:
If the Court were to adopt the Eighth Circuit’s interpretation of Baze, requiring a lawyer to propose a specific alternative method of execution when pleading to the cruel and unusual nature of one method of execution, that requirement would force lawyers to violate their duties of competent representation. Proposing such an alternative requires detailed information that the defense lawyer necessarily lacks at the pleading stage and is unlikely to ever be able to acquire.
If a defense lawyer lacks the knowledge to plead his client’s case then he will necessarily breach his legally binding duty of competence. Missouri Rules of Prof’l Conduct R. 4-1.1 (2007). As such, the Eighth Circuit’s requirement would render it impossible for lawyers to competently plead to the cruel and unusual nature of the then-present method of execution.
This is what Lombardi is about. It's about a federal court depriving lawyers of the right to "detailed information" about the drugs that are to be used against their clients—information that would allow those lawyers to "competently" argue over whether those drugs (by being contaminated or diluted, for example) preclude an execution that is not cruel. The justices of the Roberts Court may not be especially sympathetic to the conclusions of a bunch of legal ethicists. But the issues raised by the Yale brief are legitimate and should not go unanswered.