                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                 File Name: 09a0227p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                 X
                            Plaintiff-Appellee, -
 EDWARD JEROME HARBISON,
                                                  -
                                                  -
                                                  -
                                                      No. 07-6225
           v.
                                                  ,
                                                   >
                                                  -
                                                  -
 GEORGE LITTLE, in his official capacity as
                                                  -
 Tennessee’s Commissioner of Correction, et
                                                  -
 al.,
                      Defendants-Appellants. -
                                                 N
                   Appeal from the United States District Court
                 for the Middle District of Tennessee at Nashville.
               No. 06-01206—Aleta Arthur Trauger, District Judge.
                              Argued: January 20, 2009
                           Decided and Filed: July 2, 2009
                  Before: SILER, CLAY, and COOK, Circuit Judges.

                                 _________________

                                      COUNSEL
ARGUED: Joseph Frederick Whalen, OFFICE OF THE TENNESSEE ATTORNEY
GENERAL, Nashville, Tennessee, for Appellants. Stephen M. Kissinger, FEDERAL
DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for
Appellee. ON BRIEF: Joseph Frederick Whalen, OFFICE OF THE TENNESSEE
ATTORNEY GENERAL, Nashville, Tennessee, for Appellants. Stephen M. Kissinger,
Dana Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,
INC., Knoxville, Tennessee, for Appellee.
         SILER, J., delivered the opinion of the court, in which COOK, J., joined. CLAY,
J. (pp. 12-14), delivered a separate dissenting opinion.




                                           1
No. 07-6225         Harbison v. Little, et al.                                         Page 2


                                    _________________

                                         OPINION
                                    _________________

        SILER, Circuit Judge. Edward Jerome Harbison is a Tennessee prisoner under death
sentence who has exhausted all appeals and was denied a writ of habeas corpus. In 2006,
Harbison filed a complaint under 42 U.S.C. § 1983, challenging Tennessee’s lethal injection
protocol. The district court granted judgment in favor of Harbison, holding that the protocol
violated the Eighth Amendment. The state defendants (State) appealed, relying on the
Supreme Court’s decision in Baze v. Rees, 128 S. Ct. 1520 (2008), which was decided after
the district court decision in this case. Baze upheld Kentucky’s lethal injection protocol and
held that a substantially similar protocol would not violate the Eighth Amendment. Finding
Tennessee’s protocol substantially similar, we vacate the district court’s judgment and
remand for further proceedings.

                                       I. Background

        In1984, Harbison was convicted of first-degree murder, second-degree burglary, and
grand larceny, and sentenced to death. On direct appeal, the Tennessee Supreme Court
affirmed his convictions and sentence. State v. Harbison, 704 S.W.2d 314 (Tenn. 1986).
The state courts also denied Harbison’s claims for post-conviction relief. See Harbison v.
State, No. E2004-00885-CCA-R28-PD, 2005 WL 1521910 (Tenn. Crim. App. June 27,
2005) (unpublished opinion); Harbison v. State, No. 03C01-9204-CR-00125, 1996 WL
266114 (Tenn. Crim. App. May 20, 1996) (unpublished opinion).

        In 1997, Harbison filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus in
federal district court. In 2001, the district court dismissed Harbison’s petition as meritless,
and we affirmed. See Harbison v. Bell, 408 F.3d 823 (6th Cir. 2005). Harbison pursued
additional relief in federal court, but his efforts were not successful. See Harbison v. Bell,
503 F.3d 566 (6th Cir. 2007), cert. denied, 128 S. Ct. 1479 (2008), cert. granted, 128 S. Ct.
2959 (2008), and rev’d on other grounds, 129 S. Ct. 1481 (2009).

        In 2006, Harbison filed this 42 U.S.C. § 1983 action, challenging the lethal injection
protocol used by Tennessee. After a bench trial, the district court granted judgment in favor
No. 07-6225          Harbison v. Little, et al.                                          Page 3


of Harbison, holding that Tennessee’s lethal injection protocol violated the Eighth
Amendment because the State knowingly disregarded the protocol’s substantial risk of
inflicting unnecessary pain. Harbison v. Little, 511 F. Supp. 2d 872 (M.D. Tenn. 2007).
The State appeals from this decision.

        Harbison argues that the lethal injection protocol utilized by the State violates his
Eighth Amendment rights because it involves the unnecessary and wanton infliction of pain.
In 1998, Tennessee adopted lethal injection as an option for the execution of prisoners
sentenced to death, and it implemented a “three-drug” protocol for carrying out lethal
injection. See Workman v. Bredesen, 486 F.3d 896, 901 (6th Cir. 2007), cert. denied, 550
U.S. 930 (2007). The three drugs utilized are sodium thiopental, pancuronium bromide, and
potassium chloride. Id. at 902. The sodium thiopental anesthetizes the prisoner, the
pancuronium bromide paralyzes the prisoner’s muscles, and finally the potassium chloride
induces cardiac arrest. Id.

        In 2007, the governor issued an executive order directing the Department of
Correction to review Tennessee’s lethal injection protocol due to concerns raised about the
written procedures. State of Tennessee, Executive Order by the Governor No. 43 (Feb. 1,
2007), available at http://state.tn.us/sos/pub/execorders/exec-orders-bred43.pdf.           The
Commissioner of the Department of Correction, George Little, formed a committee which
conducted research, sought expert opinions, and studied the approaches of other
jurisdictions. Workman, 486 F.3d at 902.          Following this review, Tennessee issued an
amended protocol, including an updated execution manual. Id. The amended protocol set
forth each step of the execution process in detail, as well as the qualifications, selection
process, and training requirements for the execution team members. Id.              Although it
considered other lethal injection alternatives, Tennessee decided to retain the three-drug
protocol that it had been using for its lethal injection procedure. Id. at 902-03.

        That same year, we reviewed the amended protocol in the context of a temporary
restraining order to suspend an execution in Workman. We concluded that the inmate did
not demonstrate a likelihood of success on the merits of his Eighth Amendment claim. Id.
at 905-06. We noted that the amended three-drug protocol was designed to avoid the
needless infliction of pain, rather than cause it. Id. at 907. Further, we found that the State’s
No. 07-6225          Harbison v. Little, et al.                                         Page 4


efforts in amending its protocol demonstrated an intent to not just meet the requirements of
the Eighth Amendment, but to exceed them. Id. at 907.

        Later in 2007, the district court in this case concluded that the amended protocol
retained an inherent risk of the sodium thiopental’s being improperly administered and
therefore Harbison would not be unconscious when the second and third drugs are
administered. Harbison, 511 F. Supp. 2d at 884. The court cited several reasons for reaching
this conclusion. First, the amended protocol did not provide a test for determining whether
the inmate was conscious before administering the second drug, pancuronium bromide. Id.
at 884-86. Second, the State did not carefully select and adequately train the individuals
performing the execution. Id. at 886-91. Third, the protocol did not provide for tactile
monitoring of the IV lines during the administration of the drugs. Id. at 891-92. The court
also noted that the State protocol review committee had recommended several safeguards
as part of its review process, including the adoption of a “one-drug” protocol, but that the
Department of Correction did not adopt these recommendations when issuing the amended
protocol. Id. at 895. In light of these factors, the court concluded that the State knowingly
disregarded an excessive risk of causing pain to the inmate when it issued the amended
protocol. Id. at 903.

        The district court distinguished our prior decision upholding the protocol in
Workman because there was no evidentiary hearing before the Workman district court. It
found the assumptions we relied on in Workman to have been proven false by the testimony
at the bench trial in this case. Id. The district court criticized this court’s reliance on the
committee report, finding that after a four-day evidentiary hearing, “despite the hard work
of the Protocol Committee, none of the recommendations that were the fruit of its hard work
were accepted by Corrections Commissioner Little nor integrated into the new protocol.”
Id. at 899. It also found two of the assumptions of Workman to be proven erroneous by the
evidentiary hearing in Harbison’s case. First, it found that the risk of the sodium thiopental’s
failing to render the inmate unconscious, resulting in the inmate’s feeling the effects of the
two subsequent drugs, was more significant than we described given the lack of a check for
consciousness before administration of the two final drugs and remote placement of the
doctor in another room. Id. at 900. It also found important that we assumed that the
committee, after all of its research, recommended the three-drug protocol. Id. In actuality,
No. 07-6225          Harbison v. Little, et al.                                         Page 5


the committee recommended the one-drug protocol, but Commissioner Little, who did not
participate in the committee meetings or consult with medical experts, rejected the one-drug
protocol, and recommended an amended three-drug protocol. Id.

        Subsequent to the district court’s decision, the Supreme Court addressed Kentucky’s
three-drug lethal injection protocol in Baze v. Rees, 128 S. Ct. 1520 (2008). The Court
issued several opinions in that case, including Chief Justice Roberts’s plurality opinion
(writing for two other justices), one concurring opinion, four other opinions concurring in
the judgment, and one dissenting opinion. Under these circumstances, Chief Justice
Roberts’s plurality opinion is controlling. See Emmett v. Johnson, 532 F.3d 291, 298 n.4
(4th Cir. 2008); see also Walker v. Epps, 287 Fed. App’x 371, 375 (5th Cir. 2008) (relying
on plurality opinion for controlling legal standard). A prisoner cannot successfully challenge
a method of execution merely by showing that the method may result in pain, either by
accident or as an inescapable consequence of death, or that a slightly safer alternative is
available. Baze, 128 S. Ct. at 1531. In order for a lethal injection protocol to violate the
Eighth Amendment, the inmate must show it “creates a demonstrated risk of severe pain.
He must show that the risk is substantial when compared to the known and available
alternatives.”   Id. at 1537. With respect to the disposition of future challenges to state
protocols, the plurality opinion stated: “A State with a lethal injection protocol substantially
similar to the protocol we uphold today would not create a risk that meets this standard.”
Id.

                                           II. Analysis

        This court reviews the district court’s findings of fact for clear error and conclusions
of law de novo. Overton Distribs., Inc. v. Heritage Bank, 340 F.3d 361, 366 (6th Cir. 2003).
Here, the issue of whether the protocol exposes the inmate to a substantial risk of serious
harm is a question of law. See Emmett, 532 F.3d at 300 (considering the same issue with
respect to Virginia’s lethal injection protocol post-Baze: “. . . Emmett has failed as a matter
of law to demonstrate a substantial or objectively intolerable risk that he will receive an
inadequate dose of thiopental . . . .”).

        Thirty-five states and the Federal government use lethal injection as their primary
method of execution. See Death Penalty Information Center, Facts About the Death Penalty
No. 07-6225         Harbison v. Little, et al.                                         Page 6


1 (2009), available at http://www.deathpenaltyinfo.org/FactSheet.pdf. At least 30 states,
including Tennessee, use the same three drugs: sodium thiopental, pancuronium bromide,
and potassium chloride, in varying amounts. Baze, 128 S.Ct at 1527.

        According to the Tennessee protocol, two paramedic technicians, members of the
“IV Team,” insert catheters into each of the inmate’s arms. These catheters run from the
inmate’s arms to the execution room, where the executioner administers the drugs into one
of the lines (the other is a back-up line). The executioner injects each drug intravenously,
with saline flushes in between the different drugs. The drugs and saline flushes are
administered in 50 cubic centimeter syringes. The following amounts of each drug are used:
5 grams of sodium thiopental, administered in four syringes; 100 milligrams (1 mg/mL) of
pancuronium bromide, administered in two syringes, and 100 milliliters (of a 2 mEq/mL) of
potassium chloride, administered in two syringes. The protocol also describes the role of
each drug: the sodium thiopental depresses the central nervous system, causing “sedation or
sleep, depending on the dose,” the pancuronium bromide is a muscle paralytic that “will
assist in the suppression on breathing and ensure death,” and finally the potassium chloride
“causes cardiac arrest and rapid death.” After all of the injections are administered, the
executioner closes the IV line and opens up the drip chamber, and signals the warden that
all of the syringes have been administered. After a five-minute waiting period, a physician
is brought in to pronounce the inmate’s death.

        As in Baze, 128 S. Ct. at 1526, the inmate here concedes that if the protocol were
followed perfectly, it would not pose an unconstitutional risk of pain, and argues instead that
maladministration of the sodium thiopental would result in a severe risk of pain from the
subsequent drugs that could go undetected. Harbison, 511 F. Supp.2d at 884. The district
court invalidated the Tennessee protocol on several bases: failure to check for consciousness
before the pancuronium bromide is administered, inadequate selection and training of
personnel, and failure to provide for tactile monitoring of the IV lines during the
administration of the drugs. Id. at 884-92. The Supreme Court, however, considered these
risks under the Kentucky protocol, and found they did not constitute a substantial risk of
serious harm. Baze, 128 S. Ct. at 1537-38. In addition, the Court rejected the failure to
adopt a one-drug protocol as a basis for finding the current protocol unconstitutional. Id. at
1535. Given the direction in Baze that a protocol substantially similar to Kentucky’s would
No. 07-6225          Harbison v. Little, et al.                                            Page 7


not create a risk that violates the constitutional standard set forth in the Court’s opinion,
Tennessee’s protocol must be upheld because Baze addressed the same risks identified by
the trial court, but reached the conclusion that they did not rise to the level of a constitutional
violation.

                          A. Failure to Check for Consciousness

        The district court first concluded that the amended protocol was deficient because
it did not provide a proper procedure for ensuring that the inmate was unconscious before
administering the pancuronium bromide. Harbison, 511 F. Supp.2d at 884. The court noted
that other states required the execution team to determine if the inmate is still conscious
before proceeding with this step. Id. at 884-85. The Tennessee protocol review committee
also had recommended that procedures be put in place to ensure that the inmate was
unconscious at this step. Id. at 885-86. Possible methods for determining consciousness
included lightly brushing the eyelashes, lifting up an arm, or pinching a nipple. Despite this
recommendation, these safeguards were not adopted in the amended protocol. Id. at 886.
Instead, the prison warden who is in the room with the inmate, and the executioners who
would be able to see the inmate through a one-way glass window, monitor the prisoner
visually during the execution process, which the State believed to be a sufficient safeguard.
Id. The district court disagreed, holding that the failure to check for consciousness greatly
enhanced the risk that the inmate would suffer unnecessary pain. Id.

        Baze, however, rejected the necessity of the procedures relied on by the district court.
It noted at the outset that because a proper dose of sodium thiopental would render any check
for consciousness unnecessary, “[t]he risks of failing to adopt additional monitoring
procedures are thus even more ‘remote’ and attenuated than the risks posed by the alleged
inadequacies of Kentucky’s procedures designed to ensure the delivery of thiopental.” Baze,
128 S. Ct. at 1536 (citing Hamilton v. Jones, 472 F.3d 814, 817 (10th Cir. 2007) (per
curiam); Taylor v. Crawford, 487 F.3d 1072, 1084 (8th Cir. 2007)). While the plaintiffs in
Baze argued that the state needed to adopt certain steps to ensure the prisoner’s
unconsciousness, including some of the same tests suggested by Harbison, the Court
concluded that a visual inspection of the inmate by the warden was sufficient to protect the
inmate’s Eighth Amendment rights. Id. at 1536-37.
No. 07-6225          Harbison v. Little, et al.                                         Page 8


                  B. Inadequate Selection and Training of Personnel

        Second, the district court determined that Tennessee’s amended protocol was
deficient because it did not contain adequate procedures for selecting and training the
personnel involved in executions. Harbison, 511 F. Supp.2d at 886-91. The court noted that
one of the members of Tennessee’s current execution team had a history of drug and alcohol
addiction and psychological disorders, which raised questions about the screening process
for members of the execution team. Id. at 887-88. Further, the court found that the
executioners did not have sufficient training.          Two of the executioners received
approximately forty hours of training on the insertion of IV catheters, but not on setting up
IV lines, administering drugs through the IV lines, or monitoring the IV lines during the
injections. Id. at 887. The third executioner only received four hours of training on IV
insertion. Id. at 887. Warden Bell, the only person in the room with the inmate, testified his
training was viewing executions in Texas, visiting an execution site in Indiana, and talking
with other states about the process. Id. The executioners and Warden Bell also participate
in monthly practice sessions where they inject saline solutions into volunteers. Id. Medical
experts at the trial identified several problems that could occur with IV catheters and lines
during their use, including slippage of the catheter, stopcocks used to set the directional flow
of the IV turned in the wrong direction, and injection of the wrong drug. Id. at 888-90.
When questioned, the members of the execution team could not identify these potential
problems. Id. at 890. The district court held that the inability of the executioners to identify
these problems demonstrated the likelihood that an accident would occur at some point
which increases the inmate’s risk of unnecessary pain. Id. at 891.

        The Supreme Court in Baze, however, reached a different conclusion when faced
with a similar question. While the Baze plaintiffs argued that the executioners were
inadequately trained, the Court noted that Kentucky required team members to be certified
medical professionals who engage in regular practice sessions. Baze, 128 S. Ct. at 1533-34.
Further, Kentucky’s protocol required the team to run primary and backup IV lines for the
lethal injection process and to prepare two sets of the drugs before the execution begins. Id.
at 1534. The warden and deputy warden monitored the IV lines during the execution for any
signs of difficulties. Id. The Court determined that these redundant measures ensured that
the prisoner would still receive an adequate dose of sodium thiopental if problems should
No. 07-6225         Harbison v. Little, et al.                                         Page 9


arise with one of the lines. Id. Tennessee’s amended protocol contains similar requirements.
Two certified paramedics insert the catheters into the inmate’s arm. Harbison, 511 F.
Supp.2d at 886. The execution team conducts monthly practice sessions where they inject
saline solution into volunteers. Id. at 887. The warden also monitors the execution to
safeguard against potential problems. Id. at 886. In addition, although medical experts
testified that the State should employ an expert to advise the execution team on the mixing
of the lethal injection chemicals, id. at 896, Baze rejected this requirement, noting that this
task was not difficult. Baze, 128 S. Ct. at 1533.

              C. Failure to provide for tactile monitoring of the IV lines

        Third, the district court held that Tennessee’s amended protocol failed to provide
procedures for adequately monitoring the administration of drugs. Harbison, 511 F. Supp.2d
at 892. The court noted that the IV lines were only monitored visually, by looking through
a one-way window and by looking at a video screen in the executioner’s room. Id. at 891.
An expert opined that monitoring the IV lines by touching or palpating the insertion site
would be far more effective in preventing potential problems. Id. at 891-92. Based on this
testimony, the district court concluded that the sole use of visual monitoring increased the
prisoner’s risk of unnecessary pain. Id. at 892.

        Once again, Baze compels a different conclusion. While the plaintiffs in that case
raised concerns about the adequate monitoring of IV lines, the Court did not find the risk to
rise to the level of a constitutional violation because the warden and deputy warden were in
the execution room with the prisoner to visually monitor for signs of any problems. Baze,
128 S. Ct. at 1534. Medical experts in Baze testified that identifying signs of possible
infiltration occurring at the IV site would be very obvious to the average person because of
the swelling that would result. Id. Similarly, Tennessee’s amended protocol requires the
warden to be in the execution room in order to guard against problems, and the IV line also
is monitored visually by other execution team members by video camera and through a one-
way window. Harbison, 511 F. Supp.2d at 892.
No. 07-6225            Harbison v. Little, et al.                                                 Page 10


                          D. Failure to adopt alternative procedures

         Finally, the district court held that the State’s failure to adopt a “one-drug” protocol
and other safeguards demonstrated cruel and unusual punishment. Id. at 898. The
Tennessee protocol review committee recommended that the State begin to use the one-drug
protocol because it was simpler and provided a lower risk of error. Id. at 895. However,
Commissioner Little rejected this recommendation due to concerns about being in the
                                                                                   1
forefront on this issue and potential political ramifications. Id. at 896. The district court
concluded that, by rejecting the one-drug protocol, the Corrections Department
knowingly disregarded an excessive risk of pain to the prisoner. Id. at 895-96.

         While Harbison argues that Tennessee’s rejection of the “one-drug” protocol
reflects deliberate indifference to the likelihood of his suffering severe pain, the Baze
Court determined that a state’s failure to adopt the one-drug protocol did not violate the
prisoner’s Eighth Amendment rights since the comparative efficiency of that method was
not well-established. Baze, 128 S. Ct. at 1535. Although the one-drug protocol was not
specifically proposed to the state trial court in Baze, and therefore the Court did not have
any findings of fact on the effectiveness of the one-drug alternative, it noted how the
continued use of the three-drug protocol cannot be seen as an “objectively intolerable
risk” in light of the fact that no other state adopted it. Id.

         In addition, the district court’s finding that the failure to adopt other safeguards,
such as medical professionals to show the executioners how to mix the sodium thiopental
and additional checks for consciousness after the sodium thiopental, Harbison, 511 F.
Supp.2d at 896-98, requires reversal under Baze. Baze spoke to the general standard for
evaluating proposed alternative procedures and held that the Eighth Amendment requires
the plaintiff-inmate to first establish a substantial risk of serious harm before offering an
alternative that is feasible, readily implemented, and that significantly reduces a
substantial risk of severe pain. 128 S. Ct. at 1532. Only if the inmate shows the State

         1
           We also noted in Workman that the committee concluded that using only sodium thiopental
would slow down the death process, the effect of the required dosage would be less predictable as the sole
drug inducing death, and there was no data or case studies from other states on the efficacy of the one-drug
method. Workman, 486 F.3d at 902-03 (citing Report on Administration of Death Sentences in Tennessee
8 (2007)).
No. 07-6225            Harbison v. Little, et al.                                               Page 11


refused to adopt such an alternative “without a legitimate penological justification for
adhering to its current method,” will such a refusal violate the Eighth Amendment. Id.

                                                  III.

         For these reasons, we vacate the decision finding the Tennessee lethal injection
protocol violative of the Eighth Amendment, and remand to the district court to vacate
the injunction barring the State from executing Harbison and to enter judgment
consistent with this decision.2

         VACATED and REMANDED.




         2
          The dissent would remand for an evidentiary hearing in light of Baze to allow the district court
to rule on whether Harbison can meet the Baze standard. While recognizing this court’s authority to
fashion a remedy not requested by the parties, we note that neither party requested a remand in light of
Baze in briefs or at oral argument.
No. 07-6225         Harbison v. Little, et al.                                    Page 12


                                  __________________

                                       DISSENT
                                  __________________

        CLAY, Circuit Judge, dissenting. The majority concludes that Tennessee’s lethal
injection protocol is “substantially similar” to the Kentucky protocol deemed
constitutional in Baze v. Rees, 128 S. Ct. 1520 (2008), and that the district court erred
in granting judgment in favor of Harbison. At first glance, the majority opinion is
straightforward: the majority marches through the standard set forth in Baze, contrasts
the Baze plurality’s findings with the district court’s findings, and holds that Harbison
failed to satisfy the Baze standard. At closer inspection, however, it becomes obvious
that this approach is flawed, both legally and analytically. Because the district court
issued its opinion before the Baze decision, the district court never had the opportunity
to receive and consider evidence in light of the Baze standard, and it never rendered a
judgment as to whether Tennessee’s protocol complied with Baze. By failing to provide
the district court with an opportunity to consider Tennessee’s protocol in light of Baze,
the majority effectively usurps the district court’s role as a factfinder and decides an
issue never presented to the district court: whether there are material differences between
Kentucky’s and Tennessee’s lethal injection protocols. As a court of appeals, we are
obligated to provide the district court with the first opportunity to receive evidence and
rule on this question. Because I would remand this case for an evidentiary hearing in
light of Baze, I respectfully dissent.

        The majority recasts the district court’s evidentiary findings in light of criteria
that the court never considered, presuming findings under Baze that the district court
never made. It does so in a cursory manner, with minimal attention to the Baze
plurality’s fact-specific analysis, summarily concluding at each juncture that any
deficiencies in Tennessee’s execution protocol had already been considered but rejected
in Baze.

        This analysis is unsustainable inasmuch as it undercuts the factual findings of
both the district court and the Baze plurality. For example, the majority concludes that
No. 07-6225            Harbison v. Little, et al.                                                  Page 13


the failure to check for an inmate’s consciousness under the Tennessee protocol is not
problematic because the Baze Court “concluded that a visual inspection of the inmate
by the warden was sufficient to protect the inmate’s Eighth Amendment rights.” Slip op.
at 8 (citing Baze, 128 S. Ct. at 1536-37). In Baze, however, the plurality reached that
conclusion only after it credited the testimony of medical experts who stated that the
signs of IV problems, including infiltration, would be “‘very obvious,’ even to the
average person, because of the swelling that would result.” 128 S. Ct. at 1534. The
majority engages in no discussion of how the district court in this case made the opposite
factual findings.1 This is but one example of how the majority’s misguided attempts to
recast the district court’s inquiry fail.

         It is not unforeseeable that a three-drug protocol that is, at first glance, similar
to Kentucky’s protocol, could fail to meet the standard set forth in Baze. That
determination would turn in large part, not on the state’s written protocol, but rather on
the way the protocol is implemented. As Justice Stevens explained in his concurring
opinion in Baze, the “debate about lethal injection as a method of execution” remains
open, and “[t]he question whether a similar three-drug protocol may be used in other
States . . . may well be answered differently in a future case on the basis of a more
complete record.” Id. at 1542-43.

         This Court has a “heightened responsibility . . . to insist, even at the risk of delay,
on having the fact-finding process carried out properly at the level intended rather than
to assume, even indirectly, a fact-finding role.” Lewis v. Bloomsburg Mills, Inc., 773
F.2d 561, 577 (4th Cir. 1985). This admonition is particularly appropriate in the instant
case, where the district court is uniquely equipped to conduct fact-finding to determine
whether Tennessee’s execution protocol is “substantially similar” to Kentucky’s
protocol. See Baze, 128 S. Ct. at 1537. Moreover, because of the extensive testimony
that has already been heard in this case, the district court is well-positioned to consider

         1
           In the instant case, while the warden is also in the execution chamber, Tennessee’s protocol does
not require the warden to observe the lines, the site, or the inmate, (Joint Appendix (“J.A.”) at 75-76), and
the district court found that the warden had no training or experience that would allow him to do so
effectively. (J.A. at 288.) Moreover, medical experts testified that under the Tennessee protocol, the IV
is inserted in an area in which swelling associated with infiltration would not be apparent.
No. 07-6225        Harbison v. Little, et al.                                     Page 14


the record before it, to supplement the record, and to apply the facts of the case to the
new standard enunciated in Baze.

       Only after the district court’s fact-finding is complete can the district court make
a determination as to whether Tennessee’s protocol can be carried out in accordance
with the requirements set forth in Baze. And only then, if an appeal is pursued, would
this Court be in a position to evaluate the district court’s judgment. By circumventing
this process, the majority oversteps its role, and its instructions vacating the district
court’s opinion and injunction are unwarranted. Instead, this Court should remand for
an evidentiary hearing in light of Baze and provide the district court with the first
opportunity to rule on whether Harbison can meet the Baze standard. I therefore
respectfully dissent.
