TBA Law Blog


Posted by: Andrew Roskind on Mar 25, 2015

The Court announced earlier today amendments to Rule 12, Rules of the Tennessee Supreme Court, which establish the procedures used in capital cases. Although the amendments cover several items within Rule 12, the most significant changes affect the setting of execution dates, and, once set, the ability of an inmate to receive a temporary stay of execution. Of note, both of these items are additions to the Rule rather than amending prior language. Beginning July 1, 2015, the Court, the designated body to set execution dates, will not delay setting an execution date pending resolution of collateral litigation in federal court nor will the Court delay setting the date pending resolution of collateral litigation in state court unless the inmate can prove a likelihood of success on the merits in that litigation. Likewise, once an execution date is set, the Court will not stay or delay an execution date pending resolution of collateral litigation in federal court nor will the Court delay or stay a date pending resolution of collateral litigation in state court unless the inmate can prove a likelihood of success on the merits in that litigation.

In October 2014, the Court’s proposed amendments suggested that an inmate would need to prove a “significant possibility of success” on the merits of state collateral litigation. Although the adopted language appears to be a lower evidentiary standard, the amended Rule does not comment on or offer guidance to the practitioner or inmate as to what is necessary to plead or argue to reach the new, adopted threshold question. Interestingly, the new Rule does not allow a delay or stay when the collateral litigation is pending in federal court – such a delay or stay can only be obtained when the litigation is in state court.

The TBA filed a comment asking the Court to continue to adhere to its history of heightened due process and scrutiny in handling and reviewing death penalty cases. What, if any, practical effect the new amendments have on capital cases will be determined as those cases move through the various courts after July 1.