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September 8, 2008

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David M. Barron '03 Takes Lethal Injection Case to U.S. Supreme Court

David M. Barron ’03 appeared before the U.S. Supreme Court in January when the Court took up the issue of how Kentucky carries out executions by lethal injection. Barron is an assistant public advocate in the Kentucky Department of Public Advocacy’s Capital Post Conviction Unit. Donald B. Verrilli Jr., a partner at Jenner & Block in Washington, D.C. and an experienced Supreme Court litigator, argued the case. Of the many prisoners on death row Barron represents, two are arguing in this case that the drug cocktail and the procedures that Kentucky uses to execute death row inmates violate the Eighth Amendment’s ban on cruel and unusual punishment by creating an unnecessary risk of pain and suffering.

The case, Baze v. Rees, marks the first time in over 100 years that the Supreme Court has agreed to consider the standard by which courts measure such claims. Kentucky is one of many states that use the same combination of three drugs in their application of lethal injection. Barron’s argument is that the cocktail is often applied incorrectly, causing inadequate anesthesia and resulting in excruciating and unnecessary pain, and that less painful chemicals could be used to carry out lethal injections. The Court’s willingness to hear this case could result in a change to the way the death penalty is carried out across the country. The Court has blocked other executions that have been challenged in the time since it granted certiorari in Barron’s case and is handling stays of executions on a case by case basis until it rules next summer.

“I went to law school with the intent to do death penalty work,” says Barron, who became interested in activism against capital punishment while still in high school. At Brooklyn Law School, he interned with attorneys who represented individuals sentenced to death and started and oversaw a work-study program called Brooklyn Law Students Against the Death Penalty. A Sparer Public Interest Law Fellow, Barron graduated magna cum laude and was recognized with a Pro Bono Award and an award as a Student Providing Outstanding Leadership in Public Interest Student Organizations. He also worked closely with Professor Ursula Bentele in her Capital Defender Clinic. After law school, he went to practice in South Carolina, representing inmates on death row. “It is draining but extremely worthwhile,” he says of his work. “When you save a client’s life, the reward is about as good as it can get.”

Barron, who won CALI awards for both semesters of legal writing, says the key to convincing the Supreme Court to grant certiorari was to not write the petition like a typical legal brief. “They have to take cases that have a broad impact across the country,” he says. In filing such petitions, he researches what will work best to get the Justices’ attention. In the Baze case, he used a baseball analogy: “The various legal standards for determining when a method of execution is cruel and unusual punishment is the legal version of the broken down pitcher with a 95 mile per hour fastball,” according to his petition. That pitcher may look great to teams at first blush, he explains, but on closer examination, flaws in his mechanics make it likely his pitching will break down.

As one of the youngest lawyers who work on death penalty cases at this level, Barron is an anomaly at 29. A lawyer must have been practicing for three years before he or she can appear before the Supreme Court. “Having certiorari granted by the U.S. Supreme Court is a lifelong goal for many attorneys. And having it happen only four years after graduation is something I couldn’t have imagined in my wildest dreams,” he says. “I hope it can serve as an inspiration to other young attorneys.”