Emergency Hearing Called for Bernard Harcourt's Death-Row Client

Eleventh Circuit Vacates Stay and Orders Immediate Medical Examination of Doyle Lee Hamm; District Court Calls Emergency Hearing to Review Alabama’s Execution Protocol.

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New York, February 15, 2018— Federal district judge Karon O. Bowdre, chief judge of the United States District Court for the Northern District of Alabama, is scheduling an emergency medical examination of Doyle Lee Hamm, whose execution is set for Feb. 22, 2018, to determine the state of his veins.

Bowdre also called an emergency in camera hearing for Friday morning, Feb. 16, 2018, to take evidence on Alabama’s execution protocol. Columbia Law School Professor Bernard E. Harcourt, who has represented Hamm pro bono now for 28 years, will return to Alabama today for the evidentiary hearing in the Frank M. Johnson Federal Courthouse in Montgomery.

Doyle Lee Hamm in 1981Hamm was convicted and sentenced to death in 1987 for the robbery-murder of a Cullman County motel clerk, Patrick Cunningham, has been battling lymphatic cancer and carcinoma for over four years.

On Feb. 6, Chief Judge Bowdre granted a stay of execution in a lengthy 25-page opinion, expressing concern “whether peripheral venous access exists for the purpose of inserting an intravenous catheter” into Hamm. The next day, the State of Alabama filed an emergency appeal to vacate the stay with the U.S. Court of Appeals for the Eleventh Circuit.

In a 50-page response brief—heavily redacted due to the purported confidentiality of Alabama’s execution protocol—Harcourt detailed the specific findings that Bowdre made and the dangers involved in executing Hamm.

Nevertheless, the Eleventh Circuit lifted the stay within short hours of receiving Harcourt’s brief, entering an elaborate 12-page order that simultaneously ordered an immediate medical examination of Doyle Hamm’s veins. The Eleventh Circuit ordered “the district court to immediately appoint an independent medical examiner and schedule an independent medical examination, and to thereafter make any concomitant factual findings—pursuant to a hearing or otherwise—by no later than Tuesday, Feb. 20, 2018, at 5:00 p.m. Central Standard Time.”

“Chief Judge Bowdre made specific credibility findings crediting the testimony of Dr. Heath and specifically found a significant likelihood that we will prevail on the merits, so it is hard to fathom the Eleventh Circuit order,” said Harcourt. “But I am confident that the emergency medical examination and emergency hearing will vindicate our position.”

The Eleventh Circuit made clear that Hamm’s claims warranted “adequate review ahead of Hamm’s scheduled execution.” The Court emphasized that its ruling was required because the record before it was “bereft of evidence in large part because [the State] controls access both to Hamm’s existing health records and to the medical-examination process.” It ordered an immediate medical exam and factual findings within four business days.

Harcourt will be assisted at the hearing on Friday in Montgomery, Alabama, by his legal team, which will include, present at the hearing, two third-year Columbia Law students, Nika Cohen and Phoebe Wolfe.

Harcourt immediately returned to the Governor of Alabama, Kay Ivey, to plead for a short reprieve, arguing that the federal litigation is moving far too fast to ensure that Doyle Hamm’s execution is not flawed and would not ultimately undermine justice.

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Recommended reading

Updates on the case of Doyle Lee Hamm

Professor Bernard E. Harcourt’s op-ed in the New York Times

Professor Bernard E. Harcourt Argues Death Penalty Case Before 11th U.S. Circuit Court of Appeals

The Long Defense of the Alabama Death-Row Prisoner Doyle Lee Hamm

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