PL SC 473
Baze v. Rees (2008) Oral
Argument Analysis
Pam Dorian, Blane Barton, Corey Kirkwood
2/27/2011
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Baze v. Rees (2008)
By Pam Dorian, Blane Barton, Corey Kirkwood
Introduction
In Baze v. Rees, the petitioners challenged lethal injection as unconstitutional under the
Cruel and Unusual Punishment clause of the 8th Amendment. The Kentucky Supreme Court held
previously that the “cocktail” of drugs for lethal injection is not cruel and unusual punishment.
Ultimately, the Supreme Court affirmed the Kentucky Supreme Court’s decision by a 7-2 vote.
Lethal injection, as it’s performed today, is not unconstitutional. The Justices wrote a plurality of
opinions.
Justice Question Totals (Questions 1-3 on the Rubric)
Our number totals varied slightly among group members, but we agreed on the totals in
the chart below.
As you can see, there were 108 questions asked in total. Mr. Verrelli, the petitioner
representing the prisoners, was asked 53 questions by 7 different Justices. Mr. Englert,
representing Kentucky, was asked 39 questions by 4 different Justices. Finally, Mr. Garre,
representing the federal government, was only asked 16 questions total.
Somewhat surprisingly, Justice Souter asked the most questions with 22, while Justice
Scalia was right behind him with 20 questions. Justice Thomas, unsurprisingly, asked the least
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amount with 0 questions. The Justices seemed to question Mr. Verrelli more than the other two
attorneys. Interestingly, Justice Stevens asked all 18 of his questions to Mr. Englert. We address
this fact later in the paper.
As far as interruptions are concerned, my group members and I conflicted in what
constitutes an “interruption.” Ultimately, we concluded that Mr. Verrelli was interrupted 19
times, Mr. Englert was interrupted 14 times, and Mr. Garre was only interrupted 6 times.
Question Topics (4)
Throughout the presentations by the attorneys, a theme developed among the questioning
of the Justices. There was a heavy focus on one particular issue, and it can be summed up in the
question: “Would the petitioners have a case if the first drug was administered properly 100 % of
the time?” While questioning varied off of this point, the crux of this inquiry makes up the most
important argument of the case and the decision of the court seemed to have stemmed from how
adequately they felt this question was answered.
Mr. Verrilli had a string of difficult questions focused on whether the record contained
the evidentiary arguments he was raising before the Court. Mr. Englert faced a difficult series of
questions about the personnel that administer the three drug protocol and particularly, why the
individuals in charge of “pushing the drugs” into the inmate were untrained. The Justices
focused a large part of the conversation with Mr. Garre was on whether the case should be
decided at the current time or if it would be necessary for the case to go back to trial court so
certain questions could be better answered on the record. It seems that going into the oral
argument, the Justices knew what they wanted answers from and heavily focused their
questioning around certain topics, hence why we don't see a lot of variety on this front.
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Justice Communication (5)
The oral argument of this case shows no instances of Justices communicating through
questioning. Almost every major point of contention was handled by a heavy line of question by
one justice with incursions by some of the other Justices. However, there are no discernible parts
of the argument to point to that show examples of communication among the Justices. Indeed,
they seemed to each be doing their own thing, and didn’t address other Justices.
Stronger Presentation (6)
The ability of an attorney to handle themselves on his/her feet is one of extreme
importance. Giving a speech or a prepared line is not difficult, something that requires only
memorization and possibly polish to appeal to the jury. A true show of skill is the ability of an
attorney to face an onslaught of difficult questions and dispatch them with relative ease, all the
time losing no appearance of confidence. We believe that this same logic can be applied to see
what attorney gave the strongest presentation.
Mr. Garre, while a very confident attorney, is not considered in this for his role was not
the main counsel for either the petitioner or the respondent. Mr. Verrilli starts off and does not
run into too much trouble answering questions, but really takes a beating from Scalia around the
21 minute mark. At this point of the argument, Scalia starts hammering Verrilli's stance and
where he sits on the notion of a constitutional requirement for the “least painful way” in
executions. Verrilli stumbles and is shown to hold contradictory stances, even though he
attempts to deny this. During the question, Verrilli poise in confidence in his voice begins to
wane; he expresses long hesitations, and does not respond with a quick and decisive air of
confidence.
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Mr. Englert stays quite strong throughout his entire presentation. It is very easy to notice
a difference to how the two attorneys answer questions. Mr. Englert seems to have much more
confidence and decisively begins his answers with a “yes” or “no” before explaining his
reasoning, something that was not seen in Mr. Verrilli's presentation. He also is able to loop
back to questioning of the first attorney and use it to prove a point around 31:58. Mr. Englert is
able to simplify the argument down to the basic point around the administration of the first drug
and provides a persuasive argument in claiming the most qualified person in the state is the one
in charge of that duty. The toughest line of questioning for Mr. Englert concerned the personnel
that administer the drug and if they are qualified or not, a question that the evidence did not seem
to support Englert's position on. However, during the oral argument, Mr. Englert effortlessly
dispatches all questioning around these points and really sets himself apart from Mr. Verrilli.
In general, then, we felt that Mr. Englert and Mr. Garre had a stronger presentation for
the State and federal government, respectfully, than Mr. Verrelli did for the prisoners. However,
Mr. Verrelli probably had a more difficult case to make. Indeed, if the Court had ruled with him,
then it would have affected every State and made it possible for more death penalty cases to
reach the Court under the 8th Amendment. Justice Scalia says this much during the oral
argument.
The Hardest Questions (7)
We believe that the hardest question that faced Mr. Verrilli was the question asked by
Justice Breyer regarding euthanasia (pages 9-10 of the oral argument transcript). The question
came at seven minutes and thirty seconds into the oral argument. Justice Breyer was asking Mr.
Verrilli about euthanasia. Justice Breyer essentially said that you cannot compare euthanasia to
the way they euthanize animals. Justice Breyer also said that he was taken aback by what he had
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just read from the brief. Mr. Verrilli in response ignores the question by responding “Well, I
think to refer instead to the expert testimony in the case that it is certain to occur in a very few
minutes. Those are the transcript references that we provided at page 18 of the reply brief”
(pages 9-10 of the oral argument transcript). Then Chief Justice Roberts jumps in and asks
whether or not the method has ever been tried and Mr. Verrilli responds with “well it has never
been tried on humans.”
The hardest question that faced Mr. Englert was the question that Justice Stevens asked
about was that he was worried that if they ruled that Kentucky was using the right protocol, then
that would leave one question remaining, and that would be is the second drug used to
unpleasantness by the visitors constitutional (pages 41-42 of the oral argument transcript). He
also goes on to say that the second drug that is administered is the cause of excruciating pain and
that it is really not required to use. Mr. Englert, during these questions, responds only with
saying that the opinion of the Court could go either way and that the second drug is permissible.
Mr. Garre answered all of the questions that the Justices threw at him. The federal
government, it seemed, jumped randomly into the case. Yet Mr. Garre clearly has done this
multiple times, and he was more confident when addressing the Court. He didn’t get caught up at
all and was only asked 16 questions in total.
The Ruling (8)
The Justices at first glance did not seem to be hinting toward any ruling on either side.
However, when we looked at the question totals for each attorney, we suspected that the Justices
would rule in favor of Kentucky. While 8 of the Justices asked Mr. Verrilli a total of 52
questions, only 3 Justices really questioned Mr. Englert for 39 questions. That only 3 Justices
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questioned the State seemed to indicate that the other 6 of the Justices had little issue with what
they were arguing. Indeed, Justices Souter and Ginsburg asked Englert the most questions, and
they ended up being the only dissenters.
Interestingly, Justice Stevens, a more liberal Justice, asked Mr. Englert a whopping 18
questions, but ended up concurring with the Majority Opinion. In his written opinion, Stevens
agreed with the ruling but questioned the motivation behind the death penalty itself. We think
that he asked Mr. Englert so many questions because he wanted to make sure that, in agreeing
with Kentucky’s argument, he wasn’t inadvertently condoning the death penalty. We also cannot
be sure what happened in the Conference, but perhaps Justice Stevens was swayed somewhat by
another Justice.
Additionally, about 42 minutes and 20 seconds in to the oral argument, Justice Stevens
actually admits that Mr. Englert had a strong case. At this point Justice Stevens actually says to
Mr. Englert, “… the record is very persuasive in your favor, I have to acknowledge” (pages 40-
41 of the oral argument transcript). Justice Stevens also goes on to say, “I... to be very honest
with you, I think that you're... you make a very strong case on the administration in Kentucky on
the record in this case….” (page 41 of the oral argument transcript). When Justice Stevens said
this, we suspected that he was going to vote in favor of the state. We were not surprised by the
courts 7-2 decision in this case. We knew that the most compelling arguments came from the
side of the State.
Humor in the oral argument (9)
There was no humor employed throughout this oral argument. We think that this was
because the case was regarding the death penalty. In other words, there are not many things you
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can joke about when referring to someone’s fate concerning life or death. Therefore, humor was
not present in the oral arguments of this case.
Conclusion
Baze v. Rees is a very interesting case. At the time of its ruling, it was very much in the
news because nearly every state carries out the death penalty by lethal injection. Therefore, this
case had many implications. As a death penalty case, it lacked certain aspects such as humor, but
for the most part, the oral argument was interesting to listen to.
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Works Cited
Baze v. Rees, 07-5439 (The Supreme Court January 7, 2008).