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September 16, 2009

Details on the botched Ohio execution attempt, issue spotting, and seeking predictions

This story from the Cleveland Plain-Dealer has more details on Ohio's botched effort to execute Romell Broom yesterday and some reactions to it:

For more than two hours, the team attempted to insert two shunts into a vein of the compliant Broom, who tried several times to assist his executioners by shifting positions, rubbing his arm and pointing out possible usable veins. The delay will likely add to the debate about the death penalty in Ohio and what constitutes cruel and usual punishment.

"The sentence is death, not torture plus death," said Kathleen Soltis, chairwoman of the Cleveland Coalition Against the Death Penalty. "What does reprieve mean in this case? This is getting crazier than usual."

At one point, Broom, 53, lay back on his bed, covered his face with his hands, and cried. Another time, while sitting up, he was seen grimacing as the execution team appeared to seek a vein around his ankles.

A reprieve at this stage of an execution has never happened since the death penalty was reinstated in 1999, said Terry Collins, director of the Ohio Department of Rehabilitation and Correction.  He said he called the governor and asked for the reprieve after it became clear the execution team was having trouble. "I could tell my team was becoming somewhat frustrated," Collins said.  The reprieve extends only until Sept. 22.

The drama played out before the family of Tryna Middleton, the 14-year-old girl Broom was convicted of kidnapping, raping and killing 25 years ago.  Tryna's mother and father, Bessye and David Middleton, were there to witness the execution, as was an aunt.  They sat in front of a glass window through which they were expecting to see Broom die.

Instead, he never made it out of his nearby cell, where two shunts were to be installed in veins.  The shunts allow three drugs to enter the veins and sedate, paralyze and kill the inmate.  The family and others watched the preparation on closed-circuit monitors mounted in the witness area.  A camera filmed Broom and captured much of the difficulty the execution team had, as well as Broom's frustration.  Broom requested no witnesses initially, but about an hour into the process asked for his attorney, Adele Shank, to be present.

A visibly upset Shank appeared in the witness room not knowing of Broom's request but out of concern for the length of time for the execution. "The chief justice and the governor have been notified of what's going on," Shank said after the execution team spent 90 minutes trying to insert the shunts.

Collins said the execution team was able to access several veins but they collapsed once saline solution was administered. He defended the execution team and said: "They continued to do a job that most wouldn't do or couldn't do."...

Shank, Broom's lawyer, said she is considering additional appeals.  "We don't want to see a repeat of this ever," she said.

I suspect that Broom's lawyer (whom I happen to know and respect greatly) will have little trouble developing a federal Eighth Amendment claim based on what's happened to her client so far.  But I am wondering about other possible legal issues that might be raised in this setting. 

Most obviously, Broom could make a state claim based in the Ohio Constitution's prohibition on cruel and unusual punishment.  State provisions similar to the Eighth Amendment are often, but not always, interpreted in harmony with federal jurisprudence.  Notably, the Ohio Constitution's Bill of Rights also has provisions securing Inalienable Rights and Redress in Court, which perhaps are other avenues Broom's lawyers might exploring in state court.

Moving beyond Broom, I am wondering if other defendants on death row in Ohio (or in other states that rely on lethal injection) might now have a due process right to access to any preserved video that apparently "captured much of the difficulty the execution team had, as well as Broom's frustration."  I think that video would be relevant and important evidence for making constitutional claims surrounding lethal injection protocols in Ohio and perhaps in other states. 

In the same spirit, might lawyers involve in other lethal injection litigation now seek to take Romell Broom's deposition?  It seems that what Broom was experiencing physically (and perhaps also psychologically) would be relevant to claims surrounding lethal injection protocols.  Could a federal court involved in some other lethal injection litigation order a stay of Broom's new September 22 execution date in order to preserve him as a possible witness in another proceeding?

And let's throw in a little First Amendment fun: does the media (and/or an interested and responsible blogger) have a right to access any preserved video that apparently "captured much of the difficulty the execution team had, as well as Broom's frustration"?  Does the media have a right to access Broom himself to interview him about his experiences yesterday?

I could go on and on, but you all get the point of how much this real case now seems like a law school exam hypothetical.  And, of course, what ultimately happens to Broom and broader debates over lethal injection in Ohio or elsewhere is much more important than being able to spot all the issues.  Thus, I am interested in hearing predictions from any and everyone about what they expect to have happen next.

Related posts on botched Broom execution:

Some related posts on litigation in Ohio and elsewhere over lethal injection:

UPDATE:  This article from CBS News highlights that the aboitionist community is already calling for a moratorium on all executions in Ohio:

The problems prompted the American Civil Liberties Union of Ohio to ask state officials to immediately halt executions.  "Ohio's execution system is fundamentally flawed.  If the state is going to take a person's life, they must ensure that it is done as humanely as possible," ACLU Ohio counsel Carrie Davis said.  "With three botched executions in as many years, it's clear that the state must stop and review the system entirely before another person is put to death."

September 16, 2009 at 12:40 PM | Permalink

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Comments

As far as I know, the cameras that depict the preparation of the inmate for execution are Closed Circuit. At least they were in 2004, and no video or other recording is made of the process.

Posted by: Erika Cunliffe | Sep 16, 2009 1:43:30 PM

-----------
In the same spirit, might lawyers involve in other lethal injection litigation now seek to take Romell Broom's deposition? It seems that what Broom was experiencing physically (and perhaps also psychologically) would be relevant to claims surrounding lethal injection protocols. Could a federal court involved in some other lethal injection litigation order a stay of Broom's new September 22 execution date in order to preserve him as a possible witness in another proceeding?
-----------

The asshats who wanted Schiavo kept alive at all costs had similar ideas.

Posted by: anonymous | Sep 16, 2009 2:08:43 PM

There was an attempted execution many, many years ago (1800s?) and the rope broke or something when they tried to hang him. If memory serves, he was set free under the double jeopardy clause or something. Maybe I'll search for it for a cite. Trying to find a vein is a substantial act in furtherance, so there was an attempt to execute just as there was an attempt to hang.

Posted by: George | Sep 16, 2009 2:49:25 PM

@George

SCOTUS held 5-4 that it's not double jeopardy.

http://en.wikipedia.org/wiki/Francis_v._Resweber

Posted by: . | Sep 16, 2009 3:01:36 PM

"botched"? Doug, you're not serious, are you? I thought "bothced" was what they called actual executions that had possibilities that the inmate suffered. Here they couldn't find a vein, so the execution was called off. In other words, they did things right.

Posted by: federalist | Sep 16, 2009 3:19:55 PM

2:49

Francis v. Resweber is of dubious jurisprudential value. The opinion was a plurality opinion. Four votes voted no constitutional violation even if Eighth Amendment applied. Four votes voted constitutional violation. One vote voted no violation as the Amendment was not applicable against the states. Clearly the 8th Amendment has since been held applicable. A decent argument could therefore be made Francis is no longer binding.

Posted by: .. | Sep 16, 2009 3:21:59 PM

This point is pretty cynical, I know, but if Mr. Broom's sentence is commuted, would it create an incentive for long-term intravenous drug use by persons on death row?

Posted by: Ed Unneland | Sep 16, 2009 3:27:34 PM

Ed: Shouldn't persons on death row for a long time (as most are) be unable to be involved in long-term intravenous drug use?

Fed: Are you suggesting I call what happened in Ohio yesterday a "successful" attempted execution? Maybe I should call it an aborted execution so that folks concerned about abortions as well as executions come by to share their thoughts.

Posted by: Doug B. | Sep 16, 2009 4:09:16 PM

What about a Lackey/Pratt-and-Morgan type claim? Those claims are based on the idea that the mental terror of years or decades of waiting for execution---particularly if that wait includes "near misses," revoked execution dates, or repeated failures of the state to follow constitutional requirements---eventually rises to a level that constitutes cruel and unusual punishment barring execution. I don't see how many claimants could have ever had a nearer miss, or better basis to substantiate such mental terror.

Posted by: anon | Sep 16, 2009 4:17:56 PM

Sorry Doug--pro-life ends at birth.

Posted by: Res ipsa | Sep 16, 2009 4:54:21 PM

Doug, haven't you learned not to try to trade punches with me? Unfunny sarcasm is lame.

In any event, "botched" is a loaded term here. I would expect that a law professor would avoid that. But hey, that's just par for the course for you anyway.

They couldn't do it right, so they didn't do it at all. Hmmm. Sounds like caution to me. In any event, "unsuccessful execution attempt" is probably the most accurate way to describe it. You'll note, Doug, that I tend not to engage in euphemy. So trying to accuse me of wanting to engage in over-the-top euphemy (and calling the abortive big jab yesterday a "successful attempted execution" is just that) falls pretty flat.

Posted by: federalist | Sep 16, 2009 4:55:22 PM

You are truly, federalist, a legend in your own mind. Sparring aside, masked commentor, I think the best term is likely botched execution attempt, and I have now altered my post headline accordingly.

Posted by: Doug B. | Sep 16, 2009 7:57:25 PM

"failed" seems less loaded than "botched"

"aborted" would just be ironic

Posted by: anonymous | Sep 16, 2009 8:25:19 PM

Botched, of course, connotes a mistake or incompetence. Crappy veins don't mean that a mistake was made or that the people were incompetent. Leave it to a second-rate talent to insult public employees doing their jobs.

As for legend in my own mind, perhaps so. But I've whipped you plenty of times.

Posted by: federalist | Sep 16, 2009 8:38:07 PM

What would Scalia do? Look it up!

botch

1 : to foul up hopelessly —often used with up
2 : to put together in a makeshift way

The execution was definitely fouled up hopelessly enough to delay it, at least for a week, maybe forever.

This is ignoring the possibility that the protocol is makeshift.

Posted by: George | Sep 16, 2009 10:32:27 PM

All phony issues spotted and unspotted are pretextual. Any judge allowing any should be voted out or driven out.

Posted by: Supremacy Claus | Sep 16, 2009 11:27:50 PM

I am looking forward, federalist, to cites to support your claim that you've "whipped [me] plenty of times."

Let's start with this latest example, in which I think botched is the right word because all the circumstantial evidence suggests something was messed up.

For some reason, the techs in Ohio could not get IVs set up here though in 1000 other modern LI executions, never before has this been SUCH a problem. It seem you think that Broom has some kind of special veins, but he has been locked up for 25 years, so if his veins are a problem I think the Ohio prison system must be involved in some way botching up his circulatory system.

Call it whatever you want, there are lots of interesting legal issues raised by this case.

Posted by: Doug B. | Sep 17, 2009 8:06:49 AM

Doug, in a perfectly-constituted correctional facility, you would be right (especially on death row). The reality is that the inmates have 24/7 to observe the human weaknesses of those who guard them, and to find and exploit the interstices of inattention and procedural gaps. As for me, I think the death penalty should exist. If murder is an essentially different crime, then an essentially different punishment should exist. It need not be sought all the time. In fact, I would have a central panel of judges in each state that would have to give permission to bring what New York would call 1st degree murder before a grand jury. (This would establish a common law of death-eligiblity, and stop any possible shenanigans with getting pro-prosecution juries by eliminating the ones who won't sentence to death under any circumstances.)

Speaking of New York, I also think the Capital Defender's Office is a great idea and ought to be replicated elsewhere.

Posted by: Ed Unneland | Sep 17, 2009 8:14:51 AM

In federalist's mind, an ad hominem pot shot is "whipping." It's more likely that Supremacy Claus will join the ABA than that federalist will cite actual, credible examples of "whipping" you.

Posted by: Res ipsa | Sep 17, 2009 8:48:56 AM

"the abolitionist community is already calling for a moratorium on all executions in Ohio"

In other shocking news, Families Against Mandatory Minimums is trying to end mandatory minimum sentencing.

Also, for the record, I, too, have "whipped" everyone who's ever disagreed with me. Any disagreement with this proposition is based on inertia and/or denial.

Posted by: anonymous | Sep 17, 2009 11:44:04 AM

hilarious! "whipped"...I laughed so hard when I read that. Are you that delusional, really? Thanks for the comedy break, federalist.

Similarly, this cannot be described as "public employees doing their jobs." As referred to in a later posting, these people were "corrections employees who may work part time on local fire departments" as EMTs. The word "botched" is perfectly apt.

Posted by: DEJ | Sep 17, 2009 12:46:25 PM

"Let's start with this latest example, in which I think botched is the right word because all the circumstantial evidence suggests something was messed up."

Now, there we go. A law prof jumping to conclusions on speculation, er, "circumstantial evidence".

"It seem[s] you think that Broom has some kind of special veins, but he has been locked up for 25 years, so if his veins are a problem I think the Ohio prison system must be involved in some way botching up his circulatory system."

Doug, this is simply a bizarre response. First of all, venous access can be tricky. Second of all, attributing fault to the Ohio prison system for the state of Broom's veins is just wacky. If it's sarcasm--it's weak.

As for whipping you, we can go back to the threads about the Founding Fathers being "obsessed" with procedure and the commentary on juvie LWOP for crimes where death does not result.


Posted by: federalist | Sep 17, 2009 1:22:16 PM

What are the chances that Strickland will grant clemency? His directive hinted at that possibility.

Posted by: DaveP | Sep 17, 2009 5:41:44 PM

When the lawyer says issues, or many issues, or issue spotting, those are code for procedure, disputes, and endless billable hours.

The adversarial system was the method of finding the truth in Scholasticism. It is taken from the Catholic Church and prohibited by the Establishment Clause. It has no scientific or external validation. It does not even have reliability (repeatability) statistics. The adversarial system is Medieval, anti-scientific, church derived garbage. But it generates jobs for three lawyers, one on each side and the dolt in the middle. That is its sole real aim.

Whatever issues there are, does any involve the possibility of his innocence or some other major mistake? If not, any method of execution is far kinder than the way 90% of us will die. There is no justification the death of a murderer has to be perfect and peaceful, and far superior to that of most of us. We do know the murderer believes in the death penalty, by a method that does not meet Eighth Amendment standards, and for a selfish purpose. He should not mind if someone sneaks up behind him and shoots him in the head at close range.

Because all judges allowing these appeals are doing so to generate lawyer jobs, they are defrauding the taxpayer. They should be removed for theft of public funds. If they are not removed, there is moral justification for the public to retrieve its money in self-help.

The theft of public funds by lawyer rent seeking is an issue that will never come up on any law school exam.

Posted by: Supremacy Claus | Sep 18, 2009 1:32:14 AM

Res: Correct. Zero chance I will ever be a member of the ABA, even if I become a licensed lawyer (no chance of that either).

However, the ABA will be putting up statues to the Supremacy in 100 years. The Supremacy is the best friend the lawyer has ever had, and will save the profession no matter how hard it resists. He loves the lawyer and the rule of law that much.

Posted by: Supremacy Claus | Sep 18, 2009 1:37:23 AM

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