Alum Argues Lethal Injection Case Before Supreme Court

Press contact:
Public Affairs: 212-854-2650
Donald B. Verrilli Jr. '83, a member of Columbia Law School’s Board of Visitors, argued a key death penalty case before the U.S. Supreme Court in January that addresses what some consider serious pronblems with lethal injection as a way to administer the death penalty.
Verrilli, a partner in Jenner & Block’s Washington, D.C., office, represents two Kentucky death row inmates who are challenging the state's current three-drug protocol, saying that when it malfunctions, it violates the U.S. Constitution's ban on cruel and unusual punishment. Ginger Anders '02, an associate at Jenner & Block, a firm whose longstanging pro bono work in this field has had a strong national impact, also represents the petitioners.

The Kentucky case, Baze v. Rees, has effectively halted executions nationwide since the Supreme Court agreed in September to hear the case, which was argued on January 7.
"The risk here is real,’’ Verrilli told the justices, according to the Washington Post.  "That is why in the state of Kentucky it’s unlawful to euthanize animals in the way that it carries out its executions.’’
In the protocol, the first of three injected drugs is supposed to render an inmate unconscious, while the second paralyzes the muscles. The third, potassium chloride, is designed to cause cardiac arrest.  However, if the first drug doesn’t work, the second causes a "terrifying, conscious paralysis,’’ and the potassium chloride brings "excruciating burning pain as it courses through the veins,’’ Verrilli said, according to the Post story.
Verrilli came under intense questioning from justices, and while some suggested sending the case back to a lower court to compare the three-drug protocol with other options, others disagreed.
Verrilli told the justices that "it certainly would be a reasonable thing’’ to send the case back to the Kentucky courts, according to a New York Times report on the arguments.The brief Verilli submitted also put forth the option of remanding the case to lower courts.
Anders told Columbia Law School that she’s also been involved in trial-level challenges to lethal injection procedures in California and Missouri, where the courts found that prison officials were administering execution procedures without adequate training, screening and supervision. This resulted in executions being conducted in a haphazard and dangerous manner, she said.  As the result of these challenges, both states were required to revise their procedures. In 2007, Anders received Jenner & Block's Albert E. Jenner Jr. Pro Bono Award for her work in two pro bono matters.
She called her work on Baze v. Rees  “a great opportunity to think through how established Eighth Amendment doctrine applies to Kentucky’s lethal injection procedures in a challenge before the Supreme Court,”  which, she added, “has only rarely considered the constitutionality of methods of execution.”
Baze  is not the first time Verrilli has argued before the U.S. Supreme Court. In a 2005 case, decided by a 9-0 decision, he successfully argued a high profile intellectual property case for the plaintiff in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. In its opinion, the Court made it clear that companies that build businesses on the illegal distribution of copyrighted material are liable for copyright infringement.  Most recently, Verrilli argued Howard Delivery Service, Inc. v. Zurich American Insurance Co., a bankruptcy case involving priority for unpaid workers compensation premiums. In its opinion, the Court made it clear that companies that build businesses on the illegal distribution of copyrighted material are liable for copyright infringement. 

At the Law School, Verrilli was a James Kent Scholar and served as editor-in-chief of the Columbia Law Review. He clerked for Associate Justice William J. Brennan Jr. of the U.S. Supreme Court, and Judge J. Skelly Wright of the United States Court of Appeals for the District of Columbia Circuit. 

Anders also was a Kent Scholar and served as an articles editor on the Columbia Law Review.  She clerked for Justice Ruth Bader Ginsburg ‘59 on the U.S. Supreme Court,  Sonia Sotomayor on the U.S. Court of Appeals for the Second Circuit, and Gerard E. Lynch '75 on the U.S. District Court for the Southern District of New York, who is also a Columbia professor.

Columbia Law School, founded in 1858, stands at the forefront of legal education and of the law in a global society. Columbia
Law School joins traditional strengths in international and comparative law, constitutional law, administrative law, business law and human rights law with pioneering work in the areas of intellectual property, digital technology, sexuality and gender, criminal and environmental law.