October 14, 2008
Ohio ready to return to execution business
As detailed in this AP article, many of the potential legal and practical roadblocks have been cleared in order to allow Ohio to conduct its first execution in nearly 18 months. Here are specifics:
A double murderer who says he's too fat to be executed humanely has passed a pre-execution exam and is cleared to receive a lethal injection Tuesday. Richard Cooey, 41, was given a visual examination by the state when he arrived at the death house on Monday, and officials found nothing that should cause a problem in delivering the deadly chemicals.
The 5-foot-7, 267-pound Cooey had tried to avoid execution by arguing that his obesity would prevent humane lethal injection because viable veins in his arms are hard to find. A more detailed examination was to be conducted Tuesday morning, when he is scheduled to die for killing two college students in 1986.
The U.S. Supreme Court on Monday denied one of two pending appeals to stop the execution. It turned down without comment Cooey's claim that his obesity was a bar to humane lethal injection. The argument also had been rejected by a federal appeals court in Cincinnati and the Ohio Supreme Court, with both courts ruling that he missed a deadline for filing appeals....
Cooey and a co-defendant were convicted in the sexual assaults and slayings of University of Akron students Dawn McCreery, 20, and Wendy Offredo, 21, in September 1986. His co-defendant was 17 and was sentenced to life in prison because of his age. The Ohio Board of Parole and Gov. Ted Strickland have refused Cooey's plea for clemency.
Cooey dined Monday evening on the special meal he ordered, including T-bone steak with A-1 sauce, onion rings, french fries, four eggs over easy, toast with butter, hash browns, a pint of rocky road ice cream, a Mountain Dew soft drink and bear claw pastries.
I suppose you have to give Cooey some credit for using his last meal to try to make his legal claims stronger (or should I say heftier). If the topic of last meals intrigues, the internet provides this (now dated) site, Dead Man Eating, for you macabre bemusement. I wonder if A-1 and Mountain Dew might be a bit concerned about their product placements thank to Cooey.
On a more serious note, though many do not tend to think of Ohio as an active death penalty state, Ohio has been second only to Texas in total of number of executions in recent years. In addition, as detailed here at DPIC, Ohio is right now the only state other than Texas with serious execution dates scheduled for the next couple months. Though it does not appear that Ohio is planning to make up for lost time because of the Baze-related lethal-injection hiatus, I view the simple fact that the state is now poised to get back into the execution business as an important development for the national landscape of the modern administration of capital punishment.
Some recent related posts:
UPDATE: As detailed in this local story, Cooey's execution went forward apparently without a hitch this morning:
Richard Wade Cooey III was executed this morning, forever silencing his personal argument that lethal injection is a cruel and flawed process that can cause an agonizing death. Cooey, 41, was pronounced dead at 10:28 a.m., only a few minutes after being injected with a lethal flow of three drugs at the Southern Ohio Correctional Facility.
October 14, 2008 at 07:44 AM | Permalink
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Cooey was executed.
Posted by: federalist | Oct 14, 2008 11:05:40 AM
22 years is a ridiculously long time to wait to execute this guy. Does anyone know what explains the delay?
Posted by: | Oct 14, 2008 11:31:46 AM
Nobody's ever died badly, they got the job done didn't they?
Posted by: Soronel Haetir | Oct 14, 2008 11:51:53 AM
While the church bells were no doubt pealing in joy, in anticipation of Ohio rejoining the brotherhood of States which refuse to be weaned off their regular fix of execution, the Supreme Court today refused to help a man, Troy Davis, in a case where 7 of 9 witnesses have now recanted their original evidence of identification. If that isn't the biggest cop out of all time, I don't know what is. It seems Justice in America is as bankrupt as its banks.
Posted by: peter | Oct 14, 2008 12:58:15 PM
Cooey's exit made the world a better place.
Posted by: federalist | Oct 14, 2008 3:16:43 PM
Is anybody else worried about the government having the power to kill people? The 2nd, 4th, and 5th Amendments are gone. The Patriot Act turns America into a Police State. The elections are totally rigged. Now we're killing people again? What's next?
Posted by: FRED-EX | Oct 14, 2008 3:28:44 PM
I don't know, Fred. I heard that the sky has some cracks in it, though.
Posted by: | Oct 14, 2008 6:12:50 PM
And Texas executed a killer today as well. Good riddance.
Posted by: federalist | Oct 14, 2008 8:13:27 PM
What's amusing about Troy Davis is that he actually lost support after the justices gave his case a thorough examination. His execution was originally stayed by the Court and that required 5 votes. But now, a cert petition can be granted with only 4 votes and apparently, he can't even summon 4 votes. That means he lost at least 2 votes after the justices had time contemplating his case. It is also quite clear that no justice thought his case compelling enough to go openly into dissent. That tells you all you need to know about the merits of (or, more accurately, the lack thereof) his case
Posted by: realist | Oct 15, 2008 12:22:59 AM
No. Troy was sacrificed because the court was persuaded that to accept debate on such a fundamental principle as the right of innocence to prevail over the right of execution would effectively force the Supreme Court into a position of Court of last resort. It doesn't want that responsibility. That's obviously taking the game much too far..... a life simply isn't worth it.
Posted by: peter | Oct 15, 2008 1:34:16 AM
I think Justice Scalia puts it best in his concurrence in Herrera v. Collins:
"...there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) 'shock[s]' the dissenters' consciences, post, at 430, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of 'conscience shocking' as a legal test."
As for the widely trumpeted new evidence, Justice O'Connor's concurrence in Herrera should dispose of them:
"It seems that, when a prisoner's life is at stake, he often can find someone new to vouch for him. Experience has shown, however, that such affidavits are to be treated with a fair degree of skepticism."
Posted by: realist | Oct 15, 2008 1:55:38 AM
Even the most ignorant (or skeptical) would see that Justice Scalia's reliance on precedence, rule, and his reading of the constitution is made ridiculous as a result of the findings of gross error from dna testing. No doubt he much regrets the advance of science and the spotlight it places on a system of justice that is revealed to be so wanting. Are you saying that post-conviction dna testing is unconstitutional?
In Troy's case we are not talking about 1 recantation but SEVEN!!!!!!!!!!! If the law does not exist to safeguard the innocent, then an awful lot of Americans are living under an illusion that the constitution is there to protect THEM.
Posted by: peter | Oct 15, 2008 2:34:37 AM
First, this is a question of constitutional law and the question here is whether there is a constitutional right to allow such evidence to be considered after conviction. It's been 15 years since Herrera and the Court never explicitly ruled that such a right exists.
Second, the 5th Amendment does not read "Thou shalt not execute the innocent." Rather, it reads "...nor be deprived of life, liberty, or property, without due process of law...." The key point here is due process and the state of Georgia has scrupulously followed the process. So I do agree with the idea that the Constitution does not defend the innocent. It simply guarantees people the right to due process. If people do not believe that the process is good enough, I invite them to lobby their state legislatures and Congress to redesign it to their heart's content. But make no mistake: Due process has been followed. The 5th Amendment has been satisfied.
As for those recantations, let's not kid ourselves here. We all know how they came about. They came about after hours of relentless badgering by the defense with no cross-examination by the State. Such a procedure does not qualify as "due process" by any stretch of the imagination.
Posted by: realist | Oct 15, 2008 3:01:06 AM
Since any change in the law would be subject to the same oversight as the Supreme Court is charged with now, your argument is disingenuous. The ground rules have changed with the advent of dna exonerations, and dna testing is now widely accepted in practice as a proper and constitutional right. No-one will challenge that on the basis that the constitution fails to use the "correct or defining words". Neither does it rely on precedence but rather the perceived moral expectancy that the innocence should not be put to death. This expectancy, I would suggest, has been around longer than the constitution itself!
Posted by: peter | Oct 15, 2008 8:21:20 AM
The Court has consistently held that the constitution establishes a floor, not a ceiling. The states and Congress are free to expand a criminal's rights. Examples are legion. The Court ruled that the constitution does not require the State to provide an attorney for post-conviction proceedings. Yet they do so, and the Court has never wielded the constitution to strike down such laws.
What is unacceptable are attempts to pretend that DNA testing is a constitutional right. That's a bit too much considering that the Framers never heard of DNA at all. DNA testing may be a statutory right. But a constitutional right? I'm afraid not.
Posted by: realist | Oct 15, 2008 11:25:24 AM
An interesting point, though of course one can find many, many examples where the court has raised the floor, without reference to other branches of governance, and used the constitution to justify their actions in matters that again were outside of the experience or knowledge of the Framers. On a matter of such a commonly respected principle that an innocent man should not be executed, it is intolerable - one might go so far as to say, a crime against humanity - for the highest court of the land to stand aside while such a principle is overridden for the sake of expediency rather than Justice. In the case of Troy, if the Justices viewed the recantation of the 7 witnesses in the way you do, then they are relying on hearsay and uniformed opinion. Only in a court of law can such changes of evidence be confidently tested. Indeed there is great general concern for the reliability of eye-witness evidence - and much recent reform of practice. The impression is given here that, because the victim was a police officer, and so much effort has been invested in promoting the view that Troy must be guilty, that the law can be blind to subsequent evidence of error. That diminishes both confidence in the law and respect for the law. I doubt the Framers would have expected the custodians of the constitution to act in that manner.
Posted by: peter | Oct 15, 2008 1:30:52 PM