Morales v. Beard, et al

MOTION to Intervene

N.D. Cal.June 27, 2012

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION SEAN K. KENNEDY (No. 145632) Federal Public Defender (E-mail: Sean_Kennedy@fd.org) 321 East 2nd Street Los Angeles, California 90012-4202 Telephone (213) 894-5063 Facsimile (213) 894-0081 Attorney for Intervenor SCOTT LYNN PINHOLSTER UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MICHAEL ANGELO MORALES Plaintiff, v. MATTHEW CATE, Secretary of the California Department of Corrections and Rehabilitation, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 5-6-cv-219-RS CASE NO. 5-6-cv-926-RS DEATH PENALTY CASE NOTICE OF MOTION AND MOTION TO INTERVENE BY SCOTT LYNN PINHOLSTER; NOTICE OF MOTION AND MOTION TO STAY EXECUTION; MEMORANDUM OF POINTS AND AUTHORITIES DATE: August 9, 2012 TIME: 1:30 p.m. PLACE: Courtroom 3 Case3:06-cv-00926-RS Document81 Filed06/27/12 Page1 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTIONi TABLE OF CONTENTS PAGE MEMORANDUM OF POINTS AND AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . 2 I. Issues To Be Decided. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. Summary of Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Pinholster’s Motion to Intervene Should Be Granted. . . . . . . . . . . . . . . 9 A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. Pinholster’s Motion to Intervene Is Timely. . . . . . . . . . . . . . . . . 10 C. This Court Must Grant Intervention To Pinholster as of Right.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1. Pinholster’s Interests In This Matter Are Identical To Those of Morales, Brown, Sims and Fields . . . . . . . . 13 2. Without Intervention, Pinholster is Practically Impaired and Impeded From Protecting His Fifth, Eighth, And Fourteenth Amendment Interests in Avoiding Execution by an Unconstitutional and Arbitrary Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 D. The Standards for Permissive Intervention Are Met. . . . . . . . . . 14 1. This Court Has Independent Grounds for Jurisdiction. . . 14 2. The Claims of Pinholster Have Common Questions of Law or Fact with Those of the Main Action. . . . . . . . . 14 IV. Motion to Stay Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. Pinholster is Likely to Succeed on the Merits. . . . . . . . . . . . . . . 19 B. Pinholster Will Suffer Irreparable Harm. . . . . . . . . . . . . . . . . . . 20 C. The Equities are in Pinholster’s Favor. . . . . . . . . . . . . . . . . . . . . 20 D. The Public’s Interest in Orderly Review and Litigation. . . . . . . 21 V. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Case3:06-cv-00926-RS Document81 Filed06/27/12 Page2 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTIONii TABLE OF AUTHORITIES FEDERAL CASES PAGE(S) Associated General Contractors of Cal. v. Secretary of Commerce, 459 F. Supp. 766 (C.D. Cal. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Barefoot v. Estelle, 463 U.S. 880 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Georgia v. Ashcroft, 539 U.S. 461 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Hill v. Western Electric Co., 672 F.2d 381 (4th Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 League of United Latin America Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Martinez v. City of Oxnard, 229 F.R.D. 159 (C.D. Cal. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Martinez-Villareal v. Stewart, 118 F.3d 625 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 McDonald v. E.J. Lavino Co., 430 F.2d 1065 (5th Cir. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 17 Northwest Forest Resource Council v. Glickman, 82 F.3d 825 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14 United States v. Oregon, 745 F.2d 550 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Oregon, 839 F.2d 635 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Winbush v. Iowa by Glenwood State Hospital, 66 F.3d 1471 (8th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Case3:06-cv-00926-RS Document81 Filed06/27/12 Page3 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTIONiii TABLE OF AUTHORITIES FEDERAL CASES PAGE(S) Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 STATE CASES Morales v. Cal. Department of Correction & Rehabilitation, 85 Cal. Rptr. 3d 724 (Cal. Ct. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 DOCKETED CASES Cate v. United States District Court (Morales & Brown), Case No. 10-72977. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Brown, Case No. CR18104. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 FEDERAL STATUTES 42 U.S.C. § 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 14 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Fed. R. Civ. P. 24.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim STATE STATUTES Cal. Code Regs. tit. 15, § 3349. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Case3:06-cv-00926-RS Document81 Filed06/27/12 Page4 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION1 PLEASE TAKE NOTICE that Scott Lynn Pinholster (Pinholster) hereby moves the Court under Federal Rule of Civil Procedure 24, for an order granting him leave to intervene in the present matter. Pinholster’s claims share with the main action common questions of law or fact. Pinholster does not have a stay of execution currently in any court. Pinholster further moves the Court for an order staying his execution and all preparations relating thereto. There is a strong likelihood the present matter will succeed on the merits, the relative harm to the parties weighs in favor of Pinholster, and Pinholster has not delayed unnecessarily in bringing this motion for a stay. The motions are based on the Plaintiff Morales’ Fourth Amended Complaint for Equitable and Injunctive Relief Pursuant to 42 U.S.C. § 1983, this Notice, this Memorandum of Points and Authorities, along with all exhibits and papers filed in this action, and on any evidence received at the hearing. Respectfully submitted, SEAN K. KENNEDY Federal Public Defender DATED: June 27, 2012 By /S/ Sean K. Kennedy SEAN K.KENNEDY Federal Public Defender Case3:06-cv-00926-RS Document81 Filed06/27/12 Page5 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION2 MEMORANDUM OF POINTS AND AUTHORITIES Scott Lynn Pinholster (Pinholster) seeks to intervene in the present action, pursuant to Rule 24(b) of the Federal Rules of Civil Procedure, because he “has a claim or defense that shares with the main action a common question of law or fact.” Id. Alternatively and in light of the motion to intervene by the Los Angeles County District Attorney (Dkt. 543), Pinholster seeks to intervene under 24(a)(2) of the Federal Rules of Civil Procedure. Pinholster does not have a stay of execution currently in any court. Pinholster further seeks temporary, preliminary, and permanent injunctive relief to enjoin the Defendants, their officers, agents, servants, and employees, and all persons acting in concert with them from preparing to set or setting his execution date or executing him by lethal injection using the lethal injection regulations promulgated as California Code of Regulations, Title 15, § 3349 and following, or any similar practices or protocol. I. Issues To Be Decided 1. Whether Pinholster may intervene as a Plaintiff in this litigation pursuant to Rule 24 of the Federal Rules of Civil Procedure permissibly or as a matter of right. 2. Whether Pinholster should be granted a stay of execution on the same basis and to the same extent as in the case of Plaintiffs Morales, Brown, Fields, and Sims, including but not limited to any preparations for the setting of an execution date for Pinholster. II. Summary of Relevant Facts Pinholster is a condemned inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR). He is held at San Quentin State Prison, San Quentin, California, 94974. On December 15, 2006, this Court issued an order finding that the “implementation of California’s lethal-injection protocol lacks both reliability and transparency.” Morales v. Tilton, 465 F. Supp. 2d 972, 981 (N.D. Cal. 2006). The Court further determined that California’s actions and failures to act with respect to Case3:06-cv-00926-RS Document81 Filed06/27/12 Page6 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION3 the implementation of its lethal-injection protocol have resulted in an intolerable risk of a Constitutional violation. Id. To remedy this situation, California would have to undergo a “meaningful” review of its processes, which “must be undertaken with an openness to the idea of making significant improvements in the ‘infrastructure’ of executions.” Id. at 983. Thereafter, Governor Arnold Schwarzenegger announced via a press release on December 18, 2006, that he was “committed to doing whatever it takes . . . to ensure that the lethal injection process is constitutional . . . .” (Dkt. 291) The Governor added that his “administration will take immediate action to resolve [the] court[’s] concerns . . . .” (Id.) The Governor and CDCR issued a revised Operational Procedure 770 (2007 Lethal Injection Protocol) on May 15, 2007. On November 29, 2007, the Marin County Superior Court declared invalid and enjoined the enforcement of California’s 2007 Lethal Injection Protocol. Morales v. Cal. Dep’t of Corr. & Rehab., No. CV 061436 (Super. Ct. Marin County, Cal. Nov. 29, 2007), aff’d, Morales v. Cal. Dep’t of Corr. & Rehab., 85 Cal. Rptr. 3d 724, 733 (Cal. Ct. App. 2008). On July 30, 2010, the California Office of Administrative Law (OAL) promulgated regulations of the Lethal Injection Protocol (2010 Lethal Injection Protocol), effective August 29, 2010. Cal. Code Regs. tit. 15, § 3349. With the exception of a few additional deficiencies, the 2010 Lethal Injection Protocol is substantially identical to the 2007 Lethal Injection Protocol, the version that was published by the Governor and CDCR on May 15, 2007. On August 30, 2010, the day after the 2010 Lethal Injection Protocol took effect, the Riverside County Superior Court issued an execution warrant for Albert Brown. People v. Brown, No. CR18104 (Super. Ct. Riverside County, Cal. Aug. 30, 2010). After litigation involving five different courts over a six-week period, the Court of Appeals for the Ninth Circuit directed this Court to reconsider its previous Case3:06-cv-00926-RS Document81 Filed06/27/12 Page7 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION4 denial of Brown’s motion to stay his execution (Dkt. 420), and this Court then issued a stay. (Dkt. 424.) “[O]f particular importance” to the Ninth Circuit was the fact that Brown’s claims were “identical” to those then before this Court by Morales. (Dkt. 420, at 7-8.) On September 28, 2010, this Court found that the Lethal Injection Protocol “as implemented in practice through and including the date of the evidentiary hearing in the 2006 Morales litigation created a ‘demonstrated risk of severe pain.’” (Dkt. 424, at 4.) This Court also found, based on its limited opportunity to compare the 2007 Lethal Injection Protocol and the 2010 Lethal Injection Protocol approved by the California OAL on July 30, 2010, that “there is significant dispute” that there is a meaningful difference between the two protocols other than the physical facility in which executions are to take place. (Id. at 5.) This Court further indicated that it “intends to undertake . . . review . . . as quickly as is reasonably possible” of the examination of the claims raised by Morales and Brown. (Id. at 8.) On October 8, 2010, Morales and Brown filed a Fourth Amended Complaint for Equitable and Injunctive Relief (Fourth Amended Complaint) pursuant to 42 U.S.C. § 1983 in this matter. (Dkt. 428; Ex. A, Morales’ Fourth Amended Complaint.) On October 25, 2010, Defendants chose to move to dismiss the Fourth Amended Complaint rather than respond to discovery requests. The motion to dismiss was heard on December 2, 2010 and denied by this Court on December 10, 2010. On November 4, 2010 Defendants filed a motion to stay discovery, and Plaintiffs filed their Fourth Motion to Compel Discovery on November 15, 2010. On November 16, 2010, in response to an inquiry by the Court and expressed concerns that the setting of future executions across California would result in disorderly litigation such as occurred with Brown, Defendants’ counsel, the chief law enforcement officer of the State of California, assured the Court that no execution dates would be set in California until the litigation of this matter was concluded. (Ex. B, 11/16/2010 RT 3-9.) Case3:06-cv-00926-RS Document81 Filed06/27/12 Page8 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION5 The Court stayed discovery propounded by Plaintiffs pending resolution of Defendants’ motion. (Dkt. 453.) Defendants’ motion was denied on December 10, 2010. (Dkt. 461.) Shortly thereafter, on December 22, 2010, this Court lifted the stay of discovery and the parties were ordered to respond to each other’s discovery requests. (Dkt. 465.) On November 22, 2010, Defendants filed a notice informing the Court and the parties, pursuant to this Court’s order of October 5, 2010, that the CDCR ordered 521 grams of sodium thiopental that expires in 2014. (Dkt. 455.) On December 29, 2011, Plaintiffs Fields and Sims moved to intervene and for stays of executions. (Dkt. 467.) Their motions were granted. (Dkt. 473.) Defendants did not respond to Plaintiffs’ discovery requests, but rather moved for a protective order (Dkt. 478) and to strike portions of the Fourth Amended Complaint. (Dkt. 484.) On March 4, 2011 and in response to a stipulated intervention sought by inmate David Raley (Dkt. 511), the Court expressed its concern that issuing stays for all condemned inmates in California who were otherwise eligible for execution was unnecessary, given the assurances by the Attorney General of the State of California (counsel for Defendants) that no further execution dates would be set while the Court’s review was pending. (Ex. C, 3/4/2011 RT 60-62.) Raley’s stipulated intervention remains before the Court. Defendants were ordered to respond to Plaintiffs’ discovery requests forthwith. (Dkt. 513.) By stipulation and order, that deadline was extended to June 14, 2011 with further disclosures to occur fourteen days after selection of a lethal injection team, which was expected to occur by August 2011. (Dkt. 524.) The discovery completion date was set for January 15, 2012 with briefing submitted a month later. (Id. at 5.) Defendants secured an execution team on or about October 17, 2011. (Dkt. 531.) On November 2, 2011, the dates for discovery cut-off and for the parties to Case3:06-cv-00926-RS Document81 Filed06/27/12 Page9 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION6 identify issues in dispute were extended to August 15, 2012 and September 15, 2012. (Dkt. 531.) On December 19, 2011, the Marin County Superior Court ordered that the execution protocol, Cal. Code Regs. tit. 15, §§ 3349 et seq., was improperly enacted under California’s Administrative Procedures Act (APA) in response to plaintiff’s motion for summary judgment. A judgment with an injunction was entered on February 21, 2012. (Ex. D, Marin County Super. Ct. Order.) Defendant CDCR filed a Notice of Appeal on April 26, 2012. (Ex. E, Notice of Appeal.) In that Notice, Defendant CDCR stated that they would be reviewing the possibility of a single-drug execution protocol during the appeal. On March 27, 2012, the United States District Court for the District of Columbia declared that the Food and Drug Administration (FDA) had acted improperly in permitting the importation of thiopental for the purposes of executions, and ordered the FDA to retrieve all imported thiopental. Pursuant to the district court’s order, the FDA asked the CDCR in a letter dated April 6, 2012 to send any foreign-manufactured thiopental in its possession to the FDA. (Exs. E - G, Correspondence between the FDA and the CDCR regarding California’s supply of foreign-manufactured thiopental.) The CDCR has not returned the thiopental to the FDA, and the FDA and Department of Health and Human Services are appealing the decision in the U.S. Court of Appeals for the District of Columbia Circuit. (Ex. F, Notice of Appeal filed 5/25/2012.) On April 5, 2012, this Court ordered that due to uncertainties regarding how the Marin County Superior Court litigation would impact the present action, discovery is stayed to allow the parties to avoid engaging in discovery that may become moot or wasteful. This Court further ordered the parties to report the status of the actions in the Marin County Superior Court and the District Court of the District of Columbia on July 16, 2012. (Dkt. 534.) Case3:06-cv-00926-RS Document81 Filed06/27/12 Page10 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION7 On May 1, 2012, the District Attorney for the County of Los Angeles (L. A. Dist. Atty) moved the Los Angeles County Superior Court for a hearing to order Defendant CDCR to develop a single-drug execution protocol without APA approval and to set executions dates for Sims and for Tiequon A. Cox under a one-drug method. (Ex. G, L. A. Dist. Atty.’s Motion in L. A. Super. Ct.) The L. A. Dist. Atty., who personally signed the motions, failed to inform the Los Angeles County Superior Court of this Court’s stay of execution for Plaintiff Sims, the March 4, 2011 proceedings in this Court, the Marin County Superior Court’s permanent injunction, or Defendant CDCR’s appeal of that case. (Id.) On May 15, 2012, Cox moved to intervene and for a stay of executions. (Dkt. 467.) His motion is pending. On May 24, 2012, the L. A. Dist. Atty. moved to intervene in order to oppose intervention by Cox and to clarify this Court’s stay order as it applies to Sims. At a hearing on May 25, 2012, the Los Angeles Superior Court questioned whether it had jurisdiction to issue an execution order. Sims questioned whether the L. A. Superior Court had authority post-conviction to conduct discovery or an evidentiary hearing on lethal injection protocols. Sims argued that no court, civil or criminal, has the jurisdiction to require the CDCR to produce a one-drug protocol when that decision is in the discretion of the CDCR. Without deciding the jurisdictional issues, the Court agreed to sign an order to show cause to the CDCR to appear and make representations about its ability to perform a one-drug execution. The Court set a hearing for July 13. Consequently, it is possible that an execution date for Pinholster could be set shortly after July 13, 2012, setting off a chain of events similar to what occurred with Brown in September of 2010. Like Cox and Sims, Pinholster was convicted and sentenced in Los Angeles County. He does not have a stay of execution. Because the L. A. Dist. Atty. is threatening to set execution dates for prisoners sentenced to death in Los Angeles County, Pinholster is in a more precarious position than the position that Sims and Case3:06-cv-00926-RS Document81 Filed06/27/12 Page11 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION8 Fields described in their motion to intervene and for a stay of execution which this Court granted. (Dkt. 467, at 4.) The L. A. Dist. Atty. claims that “Office” has a “significantly protectable,” “‘direct’” and not “contingent or remote,” “extreme” interest in seeking an execution date using a single-drug method of execution. (Dkt. 542, at 4.) If the L. A. Dist. Atty.’s assessment of its interest is accurate, then Pinholster’s interest is similarly direct, non-contingent, not remote, and extreme. Pinholster has a liberty interest protected by the Fourteenth Amendment of the Constitution in utilizing State procedures to prevent his execution in a manner that would be deemed cruel and unusual under the Eighth Amendment. The L. A. Dist. Atty. claims to have an interest in obtaining clarification of this Court’s stay order as it relates to Sims. How the stay relates to Sims is presumably how it relates to Pinholster as this Court has expressed that a stay for these Plaintiffs and the State’s assurances to the Court in this case regarding the setting of execution dates affect all other similarly situated prisoners on death row in California. Pinholster’s situation is particularly aligned with Sims as both men were sentenced to death in Los Angeles County. Unlike Sims, Pinholster does not have a stay although presently he is exhausting his post- conviction claims in state court. Pinholster’s counsel sought a stipulation to intervene and for a stay for Pinholster that was identical to that which Defendants stipulated to and submitted to this Court for Raley. (Dkt. 511.) Without explanation, Defendants’ counsel now will not agree to the same terms for Pinholster. Pinholster’s counsel requested Defendants’ position on this Motion and have been advised only that Defendants are continuing to review their options. Pinholster is not required to exhaust administrative remedies before bringing this claim because resolution of the grievance seeking modification of the regulations is not possible through the CDCR administrative process and exhaustion is futile. See Beardslee v. Woodford, 395 F.3d 1064, 1069 n.5 (9th Cir. 2005) Nevertheless, Case3:06-cv-00926-RS Document81 Filed06/27/12 Page12 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION9 once Pinholster became aware of the L. A. Dist. Atty.’s motion in Los Angeles Superior Court, Pinholster submitted his inmate appeal for administrative remedy on June 13, 2012. Pinholster has received no response from Defendant CDCR to date. By this motion to intervene, Pinholster also seeks to avoid any potential objection to be raised in the future by Defendants that Pinholster is not entitled to intervene or to a stay of execution due to “inexcusable delay.” Although Defendants did not raise this objection to Brown’s motion for intervention and for a stay of execution in this Court, Defendants did untimely raise it in their later-withdrawn Petition for Writ of Mandamus to the Ninth Circuit Court of Appeal in Cate v. United States District Court (Morales & Brown), Case No. 10-72977. III. Pinholster’s Motion to Intervene Should Be Granted A. Introduction Morales’ and Brown’s Fourth Amended Complaint for Equitable and Injunctive Relief is incorporated herein by reference. (See also Dkt. 428; Ex. A, Morales Fourth Amended Complaint.) Pinholster joins in the Morales Complaint in all its particulars as it currently is set forth. A federal court must permit intervention as of right by anyone who files a timely motion and who “claims an interest relating to the . . . transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a). Alternatively, “a court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action, have a question of law or a question of fact in common.” Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996); Fed. R. Civ. P. 24(b). Pinholster satisfies the standards for intervention as of right as well as for permissive intervention. Case3:06-cv-00926-RS Document81 Filed06/27/12 Page13 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION10 B. Pinholster’s Motion to Intervene Is Timely Pinholster’s motion to intervene is timely under standards for intervention as of right and permissive intervention. In determining whether a motion to intervene is timely, courts consider three factors: “the stage of the proceedings, the prejudice to existing parties, and the length of and reason for the delay.” League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir. 1997); Fed. R. Civ. Proc. 24(b)(3). All three factors weigh in favor of granting Pinholster’s motion to intervene. This matter is still in its initial stages of review, mandated by numerous court orders. A status report on pending matters is due on July 16, 2012. The litigation is not “beginning to wind itself down,” such that any additional delay caused by Pinholster’s intervention is “relevant to the timeliness calculus.” League of United Latin Am. Citizens, 131 F.3d at 1304. Regardless, there will be no delay to existing parties as a result of Pinholster’s intervention. Federal Rule of Civil Procedure 24(b)(3) sets forth the standard by which a court determines whether a motion for permissive intervention is timely: “In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” “The most important consideration in determining timeliness is whether any existing party to the litigation will be harmed or prejudiced by the proposed intervenor’s delay in moving to intervene. In fact, this may well be the only significant consideration when the proposed intervenor seeks intervention of right.” McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1073 (5th Cir. 1970) (citations omitted). Pinholster is not aware of any prejudice to existing parties, and counsel for Plaintiffs have no objection to the intervention. Intervention by Pinholster will not prejudice the rights of existing parties. Pinholster does not seek to “relitigate matters which have previously been litigated,” raise any claims other than those raised by existing plaintiffs, or assert any claims Case3:06-cv-00926-RS Document81 Filed06/27/12 Page14 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION11 against them. United States v. Oregon, 745 F.2d 550, 553 (9th Cir. 1984) (holding that the state of Idaho could intervene in litigation concerning fishing on the Columbia River when “Idaho has disclaimed any intent to relitigate matters which have previously been litigated, to raise any claims unrelated to the Tribes’ treaty fishing rights, or to assert any claims against the other states”). See, e.g., Martinez v. City of Oxnard, 229 F.R.D. 159, 163 (C.D. Cal. 2005) (holding that while discovery is still being conducted, Defendants would not be prejudiced by intervention). Defendants are aware that Pinholster has a significant interest in the outcome of this litigation. See, e.g., Winbush v. Iowa by Glenwood State Hosp., 66 F.3d 1471 (8th Cir. 1995) (intervention of twenty-one individuals in Title VII action was timely even though it occurred 10 years after the filing of the complaint and following the bench trial because Defendants were aware of the intervenors who were members of the class action). Pinholster has not delayed in bringing his claims. California’s execution protocol went into effect on August 29, 2010 but was declared invalid on February 21, 2012. During that time, Pinholster was exhausting his habeas claims. As a result of the State’s assurances that execution dates would not be sought while this Court’s review of this case is pending, this Court questioned on March 4, 2011 whether stay applications are necessary for prisoners facing an execution in California. Pinholster brings this motion to intervene promptly following the L. A. Dist. Atty.’s filing of a motion to intervene in this Court and motion in the Los Angeles County Superior Court for an order setting execution dates and an order for the CDCR to develop a single-drug execution protocol for use in those future executions. Pinholster seeks intervention prior to the setting of any execution date in order to avoid putting this Court in the position in which it was placed in September 2010. (See Dkt. 424, at 7 (“it is clear that the urgency of the present situation was created not by Brown but by Defendants’ decision to seek an execution date only thirty days after the new regulations became final”). Case3:06-cv-00926-RS Document81 Filed06/27/12 Page15 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION12 As explained further in detail below, the interests of Pinholster are identical to those of Morales, Brown, Sims, and Fields in this action. Cf. Donnelly v. Glickman, 159 F.3d 405, 413 (9th Cir. 1998) (upholding the denial of a motion to intervene because the “interests of plaintiffs and the proposed intervenors ‘are in direct opposition,’ resulting in prejudice to existing parties”). Pinholster joins the Fourth Amended Complaint in all its particulars and counsel intends to work cooperatively with counsel for Morales, Brown, Sims, and Fields and to assist in developing any further briefing rather than filing separate briefing before this Court. Intervention is critical to protect Pinholster from being subjected to an execution pursuant to a protocol that carries a demonstrated risk of severe pain. If Pinholster is not permitted to intervene in this action, an execution date will be set for him, and it will be carried out pursuant to the current, flawed lethal injection protocol, using the sodium thiopental that the CDCR has obtained from a foreign source that was improperly imported and must be returned. Worse, it will be carried out by some unknown procedure cobbled together at the last minute by the Los Angeles County Superior Court. Federal Rule of Civil Procedure 24(b) permits this Court to grant a motion for intervention to avoid such an unconstitutional state action. Hill v. Western Elec. Co., 672 F.2d 381 (4th Cir. 1982) (holding that the critical issue with respect to the timeliness of intervention is whether the proposed intervenor moved to intervene as soon as it became clear that the interests of the unnamed class members would no longer be protected by the named class representatives). C. This Court Must Grant Intervention To Pinholster as of Right As set forth above, a federal court must permit intervention as of right by anyone who files a timely motion and “claims an interest relating to the . . . transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a). Case3:06-cv-00926-RS Document81 Filed06/27/12 Page16 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION13 1. Pinholster’s Interests In This Matter Are Identical To Those of Morales, Brown, Sims and Fields Pinholster joins in the Fourth Amended Complaint filed on behalf of Morales and Brown on October 8, 2010. All questions of law and fact related to Pinholster’s claims are identical to those in the Fourth Amended Complaint. 2. Without Intervention, Pinholster is Practically Impaired and Impeded From Protecting His Fifth, Eighth, And Fourteenth Amendment Interests in Avoiding Execution by an Unconstitutional and Arbitrary Procedure Intervention as of right must be granted when the disposition of the action would put the movant at a practical disadvantage in protecting its interest. United States v. Oregon, 839 F.2d 631, 635 (9th Cir. 1988) (intervention as of right is proper when factual determinations in lawsuit challenging conditions of state mental health facility would have persuasive stare decisis effect in subsequent litigation by residents of facility). Intervention must also be granted when the existing parties do not adequately represent the movant’s interests. Associated Gen. Contractors of Cal. v. Secretary of Commerce, 459 F. Supp. 766, 771 (C.D. Cal. 1978), vacated on other grounds, 448 U.S. 908 (1980); Fed. R. Civ. P. 24(a)(2). Though Pinholster shares identical interests in the legal claims propounded by Morales, Brown, Fields and Sims, his specific interest in avoiding execution by an unconstitutional protocol is not adequately represented by the existing plaintiffs because, without him being a party to this lawsuit, the State of California likely will set an execution date for him and conduct his execution while this lawsuit is pending. The likelihood of such action by the State of California is demonstrated by similar actions undertaken by the State in the past. Despite the fact that this lawsuit was pending in August and September 2010, the State of California sought to set an execution date for Fields, and did set an execution date and nearly accomplished the execution of Brown, condemned Case3:06-cv-00926-RS Document81 Filed06/27/12 Page17 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION14 prisoners who at the time were not parties to this lawsuit. The L. A. Dist. attorney now seeks execution dates for Sims and Cox. Only by intervening in this lawsuit does Pinholster obtain some measure of security against execution by an unconstitutional protocol pending the resolution of this matter. See Georgia v. Ashcroft, 539 U.S. 461, 477 (2003) (intervention properly granted to private parties in state’s action seeking judicial clearance of a legislative redistricting plan under the Voting Rights Act when private parties identified interests not adequately represented by existing parties). D. The Standards for Permissive Intervention Are Met “[A] court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action, have a question of law or a question of fact in common.” Northwest Forest Resource Council v. Glickman, 82 F.3d at 839; see also Fed. R. Civ. P. 24(b). 1. This Court Has Independent Grounds for Jurisdiction Pinholster’s claims arise under the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. This Court has independent grounds for jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights). 2. The Claims of Pinholster Have Common Questions of Law or Fact with Those of the Main Action Pinholster joins the plaintiffs in the Morales Complaint. The claims of plaintiffs and Pinholster share the following common questions of law and fact: • Whether the lethal injection regulations violate the Eighth and Fourteenth Amendments to the United States Constitution by creating a substantial risk that condemned inmates will experience severe pain and suffering during executions. (Fourth Amended Complaint, ¶¶ 22-23.) • Whether the procedure for the remote administration of chemical Case3:06-cv-00926-RS Document81 Filed06/27/12 Page18 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION15 substances, the absence of standardized procedures for administration of the chemicals, the lack of adequate training, screening and qualifications of the personnel on the execution team, and the combination and amounts of the chemicals used in executions create a grave, substantial and demonstrated risk that condemned prisoners will be conscious during the execution process and, as a result, experience an excruciatingly painful and protracted death. (Id. at ¶¶ 24-25, 27-31, 33-40.) • Whether the lethal injection regulations fail to require the minimum expertise of the execution team personnel necessary to ensure their proper performance. (Id. at ¶¶ 26, 32.) • Whether Defendants have deliberately chosen to conduct executions in a manner that is not constitutionally compliant by selecting chemicals that cause excruciating pain and therefore carry a substantial risk of serious harm to a condemned inmate and by failing to take precautions to ensure that the personnel involved in the execution process possess the training, experience, and expertise necessary to administer the chemicals properly. (Id. at ¶ 120.) • Whether Defendants have deliberately chosen to conduct executions by a combination of chemicals and a procedure that carries a substantial risk of serious harm when a feasible, readily implemented alternative method of execution is available. (Id. at ¶¶ 5, 105(f), 106-109.) • Whether the Lethal Injection Protocol provides “specific guidelines for the administration of the three separate chemicals.” (Id. at ¶ 113.) • Whether the Protocol contains adequate guidelines to assure that the inmate is “deeply anesthetized prior to injecting the second two drugs, or establish procedures for determining when an additional dose of sodium pentothal should be administered.” (Id. at ¶ 116.) Case3:06-cv-00926-RS Document81 Filed06/27/12 Page19 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION16 • Whether Pinholster, like Morales, Brown, Fields and Sims, is entitled to injunctive relief. IV. Motion to Stay Execution This Court should stay Pinholster’s execution and all preparations relating thereto by extending to him the exact stay already in place for Morales, Brown, Sims, and Fields, which secures the orderly review in this Court that was ordered by the Ninth Circuit Court of Appeals. The Court has not ruled on Raley’s stipulated request to intervene and for a stay after it received assurances from Defendants’ counsel that executions would not resume until this litigation is completed. Those assurances now appear to be insufficient as to Pinholster to bind other state actors who refuse to respect the agreements made by, and representations made to this Court by, the California Attorney General’s Office. A plaintiff seeking a preliminary injunction must establish: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). Under Barefoot v. Estelle, 463 U.S. 880, 885 (1983), Pinholster is entitled to a stay of execution if he demonstrates “substantial grounds upon which relief might be granted.” This standard is satisfied when the movant demonstrates that his “argument warrants further review,” which cannot be fully and fairly accomplished in the time remaining before the execution. See Martinez-Villareal v. Stewart, 118 F.3d 625, 626 (9th Cir. 1997). Pinholster meets these standards no less than Brown did. The course of the litigation here demonstrates that review has been delayed by Defendants’ difficulties in securing an execution team, litigation brought by Defendants to prohibit discovery, state court actions and two state court injunctions. Without valid lethal injection regulations in place, and in the absence of the completion of discovery, the substantive review mandated by the Ninth Circuit Case3:06-cv-00926-RS Document81 Filed06/27/12 Page20 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION17 remand and this Court’s order in response cannot yet take place. (Dkt. 534.) On February 22, 2006, a stay of execution in favor of Morales went into effect to allow the Court to “hold an evidentiary hearing on the merits of Plaintiff’s claims . . .” Morales v. Hickman, 415 F. Supp. 2d 1037, 1048 (N.D. Cal. 2006); see also Morales v. Tilton, 465 F. Supp. 2d 972, 977 (N.D. Cal. 2006). After the Court issued its Memorandum of Intended Decision on December 15, 2006, further hearings were stayed in November 2007 pending the outcome of the state regulatory litigation by agreement of the parties. (Dkt. 370.) That state administrative regulatory litigation was completed in August of 2010, and, pursuant to the remand order of the Ninth Circuit issued on September 28, 2010, this Court ordered its review shortly thereafter. The administrative review was delayed, however, by litigation instituted by Defendants to dismiss the complaint and for a protective order, and a year-long wait for the appointment of an execution team. On October 15, 2010, Plaintiffs served on Defendants interrogatories and requests for documents relating to Defendants’ efforts to adopt and implement the new lethal injection regulations which became effective on August 28, 2010. Defendants supposedly employed the new regulations even earlier than the published effective date and were employing them through September 29, 2010 during Defendants’ unsuccessful attempt to execute plaintiff Albert Brown on September 30, 2010. Defendants responded to the discovery requests with a motion for a protective order (Dkt. 436), which induced Plaintiffs to file a motion to compel answers, documents, and information. (Dkt. 452.) On March 4, 2011, the Court held a hearing on these motions, as well as on subsequent letter-briefing (Docs. 497, 498, 500) requested by the Court regarding the impact of the then-recent decision of the Court of Appeals for the Ninth Circuit in Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011). On March 11, 2011, the Court ordered “Defendants to produce the requested documents and information and to answer the interrogatories.” (Dkt. 513.) The Court added that it “expects the parties to comply with their discovery obligations as Case3:06-cv-00926-RS Document81 Filed06/27/12 Page21 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION18 set forth herein forthwith . . .” (Id. at 6.) Defendants have yet to comply with this order. While Defendants have served supplemental responses to the interrogatories and document requests, two privilege logs with a supporting declaration, and certain documents, they have withheld hundreds of pages of responsive documents and they have improperly asserted objections with many of their responses. Many of the documents that were produced were heavily redacted, and numerous emails were produced without the referenced attachments. As to the objections asserted – e.g., deliberative process privilege and “Dickens” – the Court already specifically has ruled that these objections are without merit, evidenced by its March 11 directive to answer the interrogatories and produce the requested documents. Defendants’ subsequent document productions on July 22, 2011 and August 5, 2011 suffered from the same deficiencies. In those submissions, Defendants also withheld in their entirety numerous documents that this Court ordered to be produced. Defendants’ position was that the Court did not order compliance on March 11, 2011, only that they respond and that their response could contain further objections and privilege assertions. On September 13, 2011, Plaintiffs requested that Defendants “comply with [their] discovery obligations as set forth [in the Court’s March 11, 2011 Order] forthwith” (Dkt. 513, at 6) by withdrawing their objections, providing complete answers to interrogatories, and producing the requested documents and information, including all documents identified in Defendants’ privilege logs served on July 15 and August 5, 2011. In the parties’ November 2, 2011 Joint Proposed Schedule and included in the Court’s November 3, 2011 Order (Dkt. 531), Plaintiffs agreed to wait for Defendants’ requested meeting in order to try to get an explanation of Defendants’ position and/or resolve this matter. Defendants thereafter asked to postpone the meeting to the week of November 7, and Plaintiffs again agreed to the request. With this issue unresolved, the Marin County Superior Court granted Plaintiff’s motion for summary judgment on December 19, 2011, declaring the lethal Case3:06-cv-00926-RS Document81 Filed06/27/12 Page22 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As noted during the Brown litigation, the few documents produced indicated1 numerous deficiencies, including the complete lack of training in the mixing of the chemicals. Defendants have never produced numerous training documents required to be maintained by the regulations such as chain of custody and sign in sheets, and have not produced any additional training materials since January of 2011. MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION19 injection regulations invalid. Judgment became final, with an injunction, on February 21, 2012. CDCR has now appealed from this judgment. The Notice of Appeal notes that CDCR will commence a review of the viability of changing its procedure to a single drug protocol. The prospect of a different procedure in response to the state court’s order may render some discovery litigation in this case moot. (See Order, April 5, 2012, at 2, Dkt. 534.) A. Pinholster is Likely to Succeed on the Merits Pinholster’s request for an injunction is likely to succeed on the merits. In its Memorandum of Intended Decision, this Court already has found that the demonstrable unreliability of the State’s execution protocol, and Defendants’ failure to correct it, violate the Eighth Amendment. It made that order explicit in response to the Brown execution effort after remand from the Ninth Circuit. (Dkt. 424.) Pinholster sits now in a similar position as Brown did upon remand from the Ninth Circuit. Brown was facing execution under a procedure that was out of compliance with state law. That procedure has now been declared invalid and enjoined, and the CDCR has been ordered to issue one that does comply with the Administrative Procedure Act. Nonetheless, the L. A. Dist. Atty. has requested that a criminal court order the CDCR to bypass this process and execute prisoners sentenced to death in Los Angeles County. There is proof that Defendant CDCR substantially deviated from their procedure in order to accelerate execution of Brown. (Dkt. 423.) If an execution1 date is set for Pinholster in the near future, it is likely that Defendants will deviate Case3:06-cv-00926-RS Document81 Filed06/27/12 Page23 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants possess thiopental which was illegally imported and must be2 returned to the Food and Drug Administration (FDA). According to the L. A. Dist. Atty.’s motion, Defendants do not have any of the second lethal injection drug, pancuronium bromide. (Ex. G, L. A. Dist. Atty.’s Motion in L. A. Super. Ct., at 20.) MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION20 from their ad hoc procedure again in order to execute Pinholster. The regulations2 suffer the deficiencies noted above and within the Complaint. B. Pinholster Will Suffer Irreparable Harm Pinholster faces execution pursuant to the same – or worse – Lethal Injection Protocol which already has required constitutional review by this Court sufficient to grant stays of execution for Morales, Brown, Sims, and Fields. Nothing has changed in this regard, and without a stay, Pinholster faces the real possibility of cruel and unusual capital punishment. In fact, Pinholster faces a possibly more inhumane execution as the L. A. Dist. Atty. has asked the state criminal court to cobble together a procedure of unknown viability that will not have benefitted from the thorough and necessary review this Court ordered in 2006, that the state courts have required be undertaken in accordance with the state APA, and that the Governor has now requested be done anew in the Notice of Appeal. C. The Equities are in Pinholster’s Favor As discussed above, Pinholster brings this request for a stay promptly after the L. A. Dist. Atty’s motion to intervene and promptly after discovering efforts by the L. A. Dist. Atty. to set execution dates for prisoners sentenced to death in Los Angeles County and the instigation of that process. There has been no delay. The California Attorney General has expressed twice in this Court that executions will not be set until this Court’s orderly review is completed. Furthermore, state courts have ruled twice that this review requires compliance with the state APA. There is no equity that favors the type of “fire drill” approach to litigation that we saw in February 2006 and again in September 2010. Case3:06-cv-00926-RS Document81 Filed06/27/12 Page24 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MTN TO INTERVENE BY PINHOLSTER; MTN TO STAY EXECUTION21 D. The Public’s Interest in Orderly Review and Litigation In 2006, this Court stated that a thorough review of the process of executions was necessary, and strongly suggested that the Governor take the lead in conducting this review. In 2010, the Ninth Circuit and this Court ruled that the review process also requires independent and orderly judicial review. Simply because a single district attorney wishes to prevent that review does not make it in the public’s interest for this Court to permit him to circumvent the process that other state actors and two courts have accepted as what must be conducted to comport with state law and the Constitution. V. Conclusion For the foregoing reasons, Pinholster respectfully requests that this Court grant his motion to intervene and motion to stay his execution and all preparations relating thereto. Respectfully submitted, SEAN K. KENNEDY Federal Public Defender DATED: June 27, 2012 By /S/ Sean K. Kennedy SEAN K.KENNEDY Federal Public Defender Case3:06-cv-00926-RS Document81 Filed06/27/12 Page25 of 25