Rupe

This is an appeal by the Superintendent of the Washington State Penitentiary, Tana Wood, from a judgment of the district court granting a writ of habeas corpus to petitioner Mitchell Rupe. Rupe was convicted of first degree murder for the shooting deaths of two bank tellers and sentenced to death. The district court declined to disturb the underlying convictions but granted the writ and vacated the sentence on two grounds. First, it ruled that Rupe would suffer cruel and unusual punishment in violation of the Eighth Amendment if he were put to death by hanging, because Rupe weighs over 400 pounds and the planned execution could decapitate him. Second, the district court held that Rupe is entitled to a new penalty phase hearing, because the jury should have been allowed to consider a polygraph test of the state’s chief witness as mitigating evidence. The polygraph test supports Rupe’s theory that the witness, who was an accessory to Rupe’s crimes, played a larger role than he admitted in the murders. The district court denied all of Rupe’s other challenges to the penalty and guilt phases of his prosecution, and Rupe cross appeals.

We affirm the grant of a new penalty phase hearing…