The Volokh Conspiracy

In 1981, Phillip Workman robbed a Wendy's restaurant in Memphis, Tennessee. While attempting to escape from police, he shot and killed Lieutenant Ronald Oliver. In 1982, a jury sentenced Workman to death. His case has been in court ever since, and generated two divided decisions from the U.S. Court of Appeals for the Sixth Circuit in just the past week.

On Friday, in Workman v. Bell, a divided panel rejected Workman's motion for a stay of execution. Writing for himself and Judge Sutton, Judge Siler explained:

Philip Ray Workman seeks a stay of execution in connection with his appeal from the denial of a motion under Fed. R. Civ. P. 60(b), a motion contending that the Attorney General for the State of Tennessee perpetrated a fraud upon the district court during Workman’s habeas corpus proceedings. Because Workman has been given considerable process during the 25 years since a state court jury found that he murdered Lieutenant Ronald Oliver, because Workman cannot seriously contend that his allegations have any bearing on a claim of actual innocence given that he testified at the state court trial that he killed Lieutenant Oliver and that he shot and injured Officer Aubrey Stoddard during the incident, . . . because the claims of fraud on the court are exceedingly attenuated and vague, and because the Tennessee Court of Criminal Appeals has rejected the premises of two of the claims, Workman has little to no likelihood of success in showing that the district court abused its discretion in rejecting his Rule 60(b) motion. We therefore deny his motion for a stay.

Nearly twenty-five years after Workman’s capital sentence and five stays of execution later, both the state and the public have an interest in finality which, if not deserving of respect yet, may never receive respect.

Workman had better luck in federal district court on Friday than in the Sixth Circuit, as he obtained a temporary restraining order to delay his execution, arguing that execution by lethal injection would constitute cruel and unusual punishment. Yet this delay would be short-lived. On Monday, the same Sixth Circuit panel vacated the TRO along the same divided lines in Workman v. Bredesen.

Judge Sutton, writing for the court, summarized the court's holding thusly:

This dispute arises from a 25-year-old capital sentence, and the district court’s order, if upheld, would be Workman’s sixth stay of an execution date set by the State over the last seven years. At no point until last Friday, May 4, 2007, did Workman challenge the State’s method of execution, even though the components of the procedure that Workman challenges today have been in existence in the main since 1998. He thus cannot escape the Supreme Court’s and this court’s limitations on dilatory challenges to an execution procedure.

Workman’s prospects for success on the merits also are dim. The Supreme Court has never invalidated a State’s chosen method of execution. No court has invalidated the three-drug protocol used by Tennessee (and 29 other jurisdictions). Several state and federal courts have upheld this same three-drug protocol (including the Tennessee Supreme Court in 2005). Our court vacated a similar stay decision in 2006 with respect to a similar challenge and permitted the State to execute the inmate under the protocol. Notwithstanding the decision of the Tennessee Supreme Court in 2005 and the decision of this court in 2006, the State undertook an effort in 2007 to review and improve the procedure. Workman acknowledges that the new procedure is only slightly different from the old procedure, and he offers no explanation how Tennessee has done anything more than make the new procedure less prone to implementation errors. Everything, indeed, the State has done in reviewing and revising the procedure shows that it is trying to prevent Workman from suffering any pain during his execution, not that it is trying or willing to allow a procedure that imposes unnecessary and wanton pain. For these reasons and those elaborated below, we vacate the district court’s temporary restraining order.

For the first time in a death-penalty case, to my knowledge, this Court vacates a temporary restraining order—an order that the Court is incompetent to review because it is not appealable—and in so doing clears the way for Philip Workman’s execution on May 9, 2007.

Just as troubling, despite the extensive and detailed allegations Workman raises tending to show that Tennessee’s new lethal-injection protocol will subject him to pain and suffering in violation of the Eighth Amendment; despite that Workman supports his allegations with testimony from physicians familiar with lethal-injection protocols, medical studies, and evidence from recent botched executions; despite the statements from federal courts across the United States expressing deep skepticism with similar lethal-injection protocols adopted by other states; and despite the deference that an appellate court owes to the judgment of a district court, the majority concludes that Workman’s concerns are insufficiently compelling to warrant a brief five-day preservation of the status quo to determine whether his claims have merit.

In the end, I simply cannot conclude that in the face of Workman’s disturbing allegations, the State’s legitimate interest in “finality” and giving effect to its criminal judgments will be irretrievably impaired by the TRO here. Indeed, the State’s interest in executing Workman “will, at worst, simply be delayed but not denied” if this Court affirms the district court’s issuance of the TRO. . . . And if Workman is ultimately successful in proving the constitutional infirmity of Tennessee’s new lethal-injection protocol, “then [the TRO] will have prevented a harm the legality of which will be open to serious question under federal law.” Accordingly, I respectfully dissent.

CORRECTION: I mistakenly attributed the second dissent to Judge Siler, when it obviously was Judge Cole. I regret the error and it is corrected above.