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Speaker 1: The state of Arkansas hasn't put anyone to death in

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Speaker 1: more than a decade because of legal challenges and the

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Speaker 1: difficulty of getting execution drugs. Then in February, Governor as A.

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Speaker 1: Hutchinson put a schedule in place to execute eight convicted

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Speaker 1: murderers over eleven days, an unprecedented pace of executions in

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Speaker 1: recent American history. The reason for the speed the state

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Speaker 1: supply of one of the execution drugs expires at the

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Speaker 1: end of the month. Governor Hutchinson told kt h V

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Speaker 1: he knows how controversial going ahead with the executions is

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Speaker 1: whenever you look at an expiration day to even though

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Speaker 1: the experts say that the potency of the drug lasts

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Speaker 1: far beyond that, I knew that that would lead to

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Speaker 1: another challenge by the defense lawyers if we went beyond

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Speaker 1: the expiration day. Lawyers for the state of Arkansas are

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Speaker 1: fighting on multiple federal and state court levels to begin

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Speaker 1: the series of executions. On Saturday, of federal judge granted

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Speaker 1: stays to the eight Arkansas inmates, putting the executions on hold.

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Speaker 1: Our guests are Robert Dunham, executive director of the Death

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Speaker 1: Penalty Information Center, and Austin Saratt, President of Jurisprudence and Professor,

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Speaker 1: excuse me, Professor of Jurisprudence and political Science at Amherst College,

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Speaker 1: Robert There was also an action in state court, but

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Speaker 1: let's begin with the grounds Federal Judge Kristen Baker gave

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Speaker 1: in her very long opinion for issuing the stay. Well, essentially,

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Speaker 1: what the federal courts said was that the prisoners had

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Speaker 1: proven that medaslum was likely to create an unnecessarily painful execution.

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Speaker 1: And the reason for that is that it's a three

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Speaker 1: drug process. The first drug is usually an anesthetic, but

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Speaker 1: medaslam is not an anesthetic. It's the sedative, and second

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Speaker 1: drug is a paralytic agent. The third drug stops the heart.

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Speaker 1: But everyone agrees that if the first drug doesn't work,

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Speaker 1: the third drugs will subject to the prisoner to an

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Speaker 1: excruciating death. And so she found, based on the longest

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Speaker 1: evidently hearing so far, that there was a significant risk

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Speaker 1: of unconstitutional pain and suffering austin under Arkansas A lot.

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Speaker 1: Why do they have to do it with these drugs?

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Speaker 1: Isn't there some other way they could do this in

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Speaker 1: a more, i don't know, a slower pace and use

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Speaker 1: some other drugs or some other method. Well. Arkansas, like

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Speaker 1: every state that has the death penalty, has a protocol

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Speaker 1: which it needs to follow in order to carry out

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Speaker 1: a legal execution, and the state protocol prescribed the drugs

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Speaker 1: that are to be used. Arkansas, like many states, has

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Speaker 1: had difficulty getting those drugs and worries of course that

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Speaker 1: if it doesn't execute before the end of April, it

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Speaker 1: won't be able to get a sufficient supply of the

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Speaker 1: drugs necessary um in order to execute. What arkansour is

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Speaker 1: doing is quite unusual. Uh, it's not. It wouldn't be

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Speaker 1: the first or only state to try to execute two

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Speaker 1: people in one day, but doing two people in one

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Speaker 1: day over a course of you know, four days, is

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Speaker 1: really quite unusual. I think only in the last oh

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Speaker 1: forty years have there been ten double executions in a

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Speaker 1: single day. And doing it that way, this assembly line

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Speaker 1: style of execution, I think, really increases dramatically the possibility

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Speaker 1: of a mishap, an error, or a bodged execution. Robert.

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Speaker 1: Adding to the controversy, a number of drug companies have

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Speaker 1: asked courts to block the use of their drugs, and

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Speaker 1: in one case accused the state of misleading the company

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Speaker 1: and going back on a promise to return the drugs.

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Speaker 1: How does that enter into this Well, that's the second

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Speaker 1: that the second suit that was filed, and I think

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Speaker 1: it it goes more into the question of execution secrecy. UH.

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Speaker 1: The McKesson company was the distributor for the vecuronium bromide,

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Speaker 1: the paralytic agent, which was produced by Fiser UH, and

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Speaker 1: they had UH they sold it to the state of Arkansas,

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Speaker 1: but they had been told at the time that is

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Speaker 1: going to be used as a medicine to help people

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Speaker 1: who who needed medical procedures, and it is not authorized

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Speaker 1: to be used in executions. UH. Fiser has distribution controls

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Speaker 1: against that. So they asked that the drugs be returned,

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Speaker 1: they offered a refund, they gave a refund, and Arkansas

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Speaker 1: did not return the drugs. So that's that raises another

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Speaker 1: very significant question. With all the secrecy statutes that we've

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Speaker 1: seen popping up so states can carry out executions. States

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Speaker 1: have been saying they needed secrecy to protect the drug

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Speaker 1: manufacturers and distributors from a backlash for participating in the executions.

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Speaker 1: It turns out that that that in this case, and

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Speaker 1: so how all other cases. The secrecy has actually been

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Speaker 1: used to try to hide from the drug manufacturers themselves

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Speaker 1: the fact that the States are misusing the drugs. Austin,

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Speaker 1: we have about thirty seconds. But what what right where?

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Speaker 1: Right now do we stand legally? What what's Arkansas going

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Speaker 1: to try to do now that it's lost in these

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Speaker 1: lower courts. Well, we're going to try to get the

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Speaker 1: injunction temporary restraining order UM lifted. What they're going to

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Speaker 1: try to do is they're going to try to argue

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Speaker 1: that the federal judge made an error of law in

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Speaker 1: her ruling. I really don't think that they're likely to succeed.

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Speaker 1: I think that what's going to happen is there's going

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Speaker 1: to be a call for an extended evidentiary hearing and proceeding,

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Speaker 1: which is likely to delay these executions. We've been talking

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Speaker 1: about Arkansas's rush to put eight convicted murderers to death

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Speaker 1: over eleven days, an unprecedented pace of executions in recent

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Speaker 1: American history. The reason being that the states supply of

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Speaker 1: one of the execution drugs expires at the end of

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Speaker 1: the month. And we've been talking with two experts in

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Speaker 1: this area. Robert Dunham, Executive director of the Death Penalty

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Speaker 1: Information Center and Austin Suratt, Professor of jurisprudence and political

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Speaker 1: science at Amherst College. Robert the drug used for sedation

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Speaker 1: that seems to be uh. The problem here is medas

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Speaker 1: a lamb, and it was actually part of a Supreme

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Speaker 1: Court case and it was upheld. The use of it

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Speaker 1: was upheld in a case from Oklahoma. I believe it

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Speaker 1: was less than two years ago, with Justice Alito writing

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Speaker 1: that the Constitution doesn't require the avoidance of all risks

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Speaker 1: of pain in execution. So what is the issue here

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Speaker 1: that would take it beyond that pronouncement by the Supreme Court.

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Speaker 1: The issue is the factual record is different. The United

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Speaker 1: States Supreme Court didn't actually say is that it was

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Speaker 1: constitutional to use medaz alain. It said that the prisoners

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Speaker 1: in open Homa had not proven that it was unconstitutional,

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Speaker 1: and that case, like the case we have right now

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Speaker 1: in Arkansas, came out of a preliminary injunction with a

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Speaker 1: very limited evidentiary record in the in the Oklahoma case,

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Speaker 1: there's a much more developed record in this case, and

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Speaker 1: there have been several botched execution since glossip have changed

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Speaker 1: the factual background. So applying the exact same law of

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Speaker 1: the district court here reached a different conclusion about the

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Speaker 1: risks of the Medasslam post Austin. One of the things

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Speaker 1: that is a little bit odd about this kind of

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Speaker 1: death penalty litigation is that, you know, what the state

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Speaker 1: is seeking to do is to put people to death.

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Speaker 1: They're going to die if they are executed and the

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Speaker 1: but we're fighting about whether or not it's a painful

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Speaker 1: death or it's not a painful death. I could imagine

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Speaker 1: some people asking why does that actually matter in terms

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Speaker 1: of what the courts should be doing. Well, it matters

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Speaker 1: because we have a constitutional commitment to punish in a

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Speaker 1: particular way. The Eighth Amendment forbids punishment that is cruel

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Speaker 1: and unusual. And for as long as there's been the

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Speaker 1: United States, as long as it's been the Bill of Rights,

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Speaker 1: as long as there's been the Constitution, there's been the

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Speaker 1: belief that how we punish is as important as that

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Speaker 1: we punish. In order for our punishments to be legitimate,

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Speaker 1: to be acceptable, to be compatible with our legal, constitutional,

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Speaker 1: cultural values, we have to punish in a way that

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Speaker 1: respects the dignity of those that we condemn and that

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Speaker 1: also accords to them the kind of treatment that the

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Speaker 1: Constitution requires. And indeed, those who are in favor of

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Speaker 1: capital punishment have the greatest investment in making sure that

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Speaker 1: that punishment is seemed to be not just appropriate, but

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Speaker 1: also legitimate. And I think that's really what's at stake

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Speaker 1: in Arkansas. It's the question of whether or not the punishment.

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Speaker 1: It's not just is the punishment deserved by these people,

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Speaker 1: but can we carry out the punishment in a way

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Speaker 1: that doesn't damage our values and undermine the legitimacy of

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Speaker 1: the system of punishment itself. Robert, look forward a little

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Speaker 1: bit or perhaps a lot to the current Supreme Court

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Speaker 1: and this question coming before the current Supreme Court, do

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Speaker 1: you see the same kind of division on the court? Well,

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Speaker 1: I don't think that, Um, that there's a huge change

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Speaker 1: in the balance of the court on death penalty issues.

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Speaker 1: Justice Kennedy is still the swing vote. Uh, And on

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Speaker 1: this case and in many other cases. UH, the outcome

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Speaker 1: is going to be what Justice Kennedy says it's going

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Speaker 1: to be. UM. With with respect to this particular issue

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Speaker 1: that's coming up, there is a question about appeals jurisprudence

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Speaker 1: and how courts go about deciding cases, because what's involved

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Speaker 1: here is whether what the district court did was clearly erroneous,

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Speaker 1: whether there was not just the mistake of fact, that

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Speaker 1: mistake and law, what the what the judge here did

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Speaker 1: was identical to what the Oklahoma judge did in the

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Speaker 1: glossip case. So it comes down to whether the court

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Speaker 1: it will be outcome oriented or whether it's going to

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Speaker 1: follow the same type of jurisprudence and defer the fact

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Speaker 1: finding of the lower court. Just just briefly, Austen was

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Speaker 1: about thirty seconds. This has been had known since February.

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Speaker 1: Is there a reason why it picked up speed all

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Speaker 1: of a sudden? Well, often in death cases, uh, issues

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Speaker 1: emerge at the last minute. Uh. Here, I think what

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Speaker 1: you saw as you saw a confluence of events. Indeed,

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Speaker 1: what's happening in our Kansas is kind of systematic about

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Speaker 1: what's happening with the definitety system across the United States.

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Speaker 1: You see challenges to the appropriateness of executing the particular individual.

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Speaker 1: You see challenges to carrying forward executions that could compromise

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Speaker 1: the legal representation of these individuals, and you see challenges

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Speaker 1: that go to the question about whether we have a

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Speaker 1: method of execution that at the end of the day,

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Speaker 1: is safe, reliable, and humane. Thank you both for being

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Speaker 1: on Bloomberg Law. That's Austin Surat, professor of jurisprudence and

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Speaker 1: political science at Amherst College, and Robert Dunham, Executive director

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Speaker 1: of the Death Penalty Information Center,