Is Ledell Lee’s Blood On Gorsuch’s Hands?

Arkansas put Ledell Lee to death after the Supreme Court denied a stay by a 5-4 margin. Is his blood on the newest associate justice’s hands? Of course it is. Just as it’s on the hands of the other four judges who refused the stay. And all the state court judges who did the same. And Governor Asa Hutchinson.

But the New York Times uses new math to make this all about Justice Gorsuch.

It’s not entirely fair to judge a Supreme Court justice based on his first vote. Urgent matters arise unexpectedly, and the court must sometimes act quickly.

This is a curious intro, as it creates a veneer of fairness, deflects criticism, by conceding that it’s “not entirely fair.” But it raises a strawman. Was the problem an emergency stay? Was it too urgent for the new kid to grasp? Was he forced to act too quickly to make the right decision? Was that the problem? If he had more time, might he have done as the Times believes he should have done? Please.

Gorsuch was a Tenth Circuit judge for a decade. He can decide an emergency stay like anyone else. Was the Times really this clueless about how law happens, or do they assume their readers are stupid enough to buy this tripe?

Still, it’s worth paying special attention to Justice Neil Gorsuch’s vote late Thursday night to deny a stay of execution for Ledell Lee, an Arkansas man who was sentenced to death in 1995 for murdering a woman named Debra Reese with a tire thumper.

After Justice Gorsuch, along with the four other conservative justices, denied his final appeal without explanation, Mr. Lee, who maintained his innocence until the end, was executed by lethal injection.

In short, the first significant decision by Justice Gorsuch, who was sworn in to office less than two weeks ago, was the most consequential any justice can make — to approve a man’s killing by the state.

Had any of the “four other conservative justices” voted to grant the stay, the 5-4 would have gone the other way. But what makes the Times focus on Gorsuch is that he’s the guy about whom a million words were murdered over how he won’t be the liberal justice they so wanted, if only Hillary had won, if only Merrick Garland had been confirmed.

Certainly the Times realizes that Trump wasn’t going to nominate Thurgood Marshall or Wild Bill Douglas to the Supreme Court, right? Certainly they didn’t expect Gorsuch to take the bench humming “I Am Woman,” holding the Notorious RBG’s hand.

Were there good reasons to grant a stay? On the one hand, it sure seems that way.

That man, like so many others condemned to die around the country, was a walking catalog of reasons the American death penalty is a travesty. Evidence that Mr. Lee was intellectually disabled and suffered from fetal alcohol syndrome was never introduced into court, mainly because he had egregiously bad representation. One of his lawyers was so drunk in court that a federal judge reviewing the case later said he could tell simply by reading the transcripts.

On the other hand, a lot of judges had already heard the case over the twenty years it’s been pending. While this emergency stay should have been sought, as nothing makes it more pressing than being on the eve of execution, it fails to explain what the hell has been happening for the past couple of decades. It’s not as if they just discovered that the case was a fiasco the day before he was to be put to death.

But the Times engages in a game of “what if.”

That 4-to-4 split effectively gave the deciding vote over Mr. Lee’s life to Justice Gorsuch, sitting in a seat that by all rights should be occupied not by him but by President Barack Obama’s doomed nominee, Merrick Garland.

Sneaky, yet disingenuous. The Times glosses over a few inferential leaps in one bound. Much as the Senate’s treatment of Judge Garland’s nomination was disgraceful, there remains the question of whether he would have been confirmed by a Republican-majority Senate had confirmation hearings been held. Bear in mind, even if the nuclear option had been invoked in Garland’s favor, the Democrats didn’t have the votes.

But more importantly, the Times tacitly assumes that Judge Garland would have voted with the “liberal wing” of the Supreme Court to grant the stay. They can get away with this because the true believers have no clue about Judge Garland’s views on criminal law, and so they have devolved to a fantasy that because he was nominated by President Obama, he must be an empathetic kinda judge. He’s not. He never was. The myth born of partisan fantasy that Judge Garland was sympathetic to defendants is total nonsense, not that the Times should let facts get in its way.

And yet, there remains one further, huge, glaring hole that goes unmentioned. This was not a decision to spare Ledell Lee’s life, but merely a temporary stay to give his defense one last-ditch effort. These stays, even when granted, almost invariably result in death, as even the liberal judges, upon full consideration, lift the stay and affirm the execution. They get that last bite of the apple, but it’s still the last meal.

Neil Gorsuch held the power of life and death in his hands Thursday night. His choice led to Ledell Lee’s execution, and gave the nation an early, and troubling, look into the mind-set of the high court’s newest member.

The New York Times fancies itself a mind-reader. and the mind they want to read at the moment is Justice Gorsuch’s. Maybe they have psychic powers. Maybe they can see malevolence inside the newest justice’s mind. But they couldn’t see Trump winning over Hillary, which suggests that they have no mad mind-reading skillz and are just blowing smoke.

It’s completely understandable that the New York Times is still sore over the election of Darth Cheeto, the diss of Merrick Garland and the nuclear confirmation of Neil Gorsuch. It’s understandable that they can’t be honest about the fact that Justice Gorsuch was as good as it was going to get in Trump replacing Nino on the Court. And as a Supreme Court associate justice, they are right that Gorsuch held the power of life and death, if only for the brief time a stay might provide.

But if they really cared about Ledell Lee’s execution, they would ask the hard questions, the real questions, rather than use this as a weapon to make people stupider about what happened and blame the new kid on the Court.

5 thoughts on “Is Ledell Lee’s Blood On Gorsuch’s Hands?

  1. B. McLeod

    Complicity by refusing to act. I’m not sure a great many people can afford to let that one out of the bottle again. It is too bad someone, somewhere, didn’t pause this until Lee had a chance to at least develop whatever the DNA testing might have shown, but there seems to be a sense that after a certain span of time, the system should stop considering possible errors.

    In any event, I am sure the correctional facility has a proper biohazards and blood-borne pathogens policy, such that any small quantity of blood that seeped from the venipuncture was appropriately captured in the death chamber and routed to the incinerator. It is unrealistic to suppose that any of it could have migrated so far as D.C., to even be seen by any of the august justices.

    1. SHG Post author

      It’s easy to assume that, had I been the justice, I would have granted the stay because I do not accept the system’s ability to get it right enough to execute anyone. But then, I’m not, and don’t expect I ever will be. Maybe this attitude makes me complicit as well.

  2. Allen

    You know they wanted to say it. Gorsuch, and by extension Trump, killed this man. This was as close as they could come. If no judge throughout the appeals process could find a problem with the original trial then it doesn’t matter who is sitting on the Supreme Court. You would think that might have crossed the Times’ radar.

  3. Charles

    “Justice Gorsuch, sitting in a seat that by all rights should be occupied not by him but by President Barack Obama’s doomed nominee, Merrick Garland”

    That’s just his full name, as stated in the Times style book.

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