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November 29, 2009

Will litigation over Ohio's new one-drug lethal injection protocol move fast or slow?

As detailed in this prior post, just before Thanksgiving a Sixth Circuit panel removed a stay blocking Ohio's scheduled December 8 execution of Kenneth Biros.  That stay was based on challenges to Ohio's old three-drug lethal injection protocol, which the state has now abandoned in favor of a one-drug protocol.  As detailed in this AP article, Biros on Friday appealed this decision to the full Sixth Circuit, but it is unclear whether Biros is still objecting to the old protocol or whether he is asking the Sixth Circuit to look at Ohio's new one-drug protocol.

This litigation uncertainty in the Biroscase is just one part of the broader questions I have concerning the process and pace of litigation over Ohio's new and novel one-drug lethal injection protocol.  I would think that the change in the state's protocol could give Biros and other death row defendants a basis for bringing new legal challenges in Ohio state courts as well as in federal districtcourt.  And I would also think that litigation focused on the new protocol could take quite some time to resolve in all the different potential trial and appellate levels (including both the Ohio and US Supreme Courts) if any judges have any serious concerns about the development, adoption and implementation of the new protocol. 

And yet, the state seems eager to get its execution chamber humming again ASAP.  When adopting the new protocol, Ohio made clear that it could, and wanted to, move forward with the scheduled December 8 execution of Biros.  In addition, because Ohio has at least one execution scheduled for each of the next five months, I suspect the state will make a serious effort to avoid or reduce any litigation delays.  Even if some judges want to go slow in reviewing Ohio's new protocol, the state's lawyers could try to quickly press appeals to higher courts in an effort to keep pending execution dates.

Because I am not privy to all the legal papers being filed and/or contemplated on all sides, I am disinclined to predict the likely process and pace of litigation over Ohio's new one-drug lethal injection protocol.  But I am hopeful that readers might not be afraid to venture guesses or educated speculation concerning how this issue will play out in the courts in the weeks and months ahead.

Some related posts on Ohio lethal injection issues:

November 29, 2009 at 01:37 PM | Permalink

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Comments

He has absolutely no chance in either state or federal court. First of all, it was one of the most liberal judges in Ohio who first ruled that the single drug protocol was statutorily mandated- Click here. Think the seven conservatives currently seated on the Ohio Supreme Court are going to reach a different result in the context of a cruel and unusual punishment claim? Of course not.

The Sixth Circuit en banc? He'll be lucky to draw two votes for rehearing, much less a win on the merits. U.S. Supreme Court? Cert denied. Even if he gets his case heard there, it will be 9-0 for the State under Baze v. Rees.

At this point, it's just a matter of his attorneys living up to their obligation to provide zealous advocacy on behalf of their client. For all intents and purposes, the case was over as soon as Ohio changed its protocol.

Posted by: JC | Nov 29, 2009 2:16:52 PM

In addition, assuming rehearing en banc and certiorari are denied and his federal stay is vacated, only the Ohio Supreme Court will have the authority to grant him a stay of execution. State v. Steffen, 70 Ohio St.3d 399 (1994). A stay from the Ohio Supreme Court would be the only way that he would be able to bring a method of execution challenge in state court. Odds of that happening? Around a billion to one. I predict he'll be executed on December 8th.

Posted by: JC | Nov 29, 2009 5:03:55 PM

These maneuvers are lawyer cult criminals running their con. Rent seeking and pretextual abuse of process is theft of tax money. Arresting these corrupt lawyers, filing frivolous claims, has full justification. How is it different from a tax treasurer's transferring tax money to a personal account and spending it on himself?

Posted by: Supremacy Claus | Nov 29, 2009 8:15:48 PM

What's in the 1 drug?

Posted by: flop | Nov 29, 2009 10:43:09 PM

"What's in the 1 drug?"

The presumptive protocol is an intravenous injection of sodium thiopental (i.e. Sodium Pentothal). Death by barbiturate with no chance of pain. If they can't find a suitable vein (like with Romell Broom), they go to the backup protocol, which is a two-drug injection directly into the muscular tissue: ten milligrams of midazolam followed by FORTY MILLIGRAMS OF DILAUDID. That would have been more than enough dope to have sent Andre the Giant to his grave grinning from ear to ear.

Posted by: JC | Nov 29, 2009 11:35:02 PM

How contradicting. Several inmates have pressed the courts for years demanding a one-drug execution that is supposedly more "humane" than the current protocol. Now they are going to ask for delays similar to the ones in the past few years to start a whole new cycle of endless litigation. A few state and federal judges have ordered the states to do the one drug application but have been reversed on appeal.

Posted by: DaveP | Nov 30, 2009 5:58:55 PM


I think there are other means to convict a person the death penalty does not seem like a choice of justice

A convicted remains strapped with a needle in the arm for 70 minutes, while studying the final appeal court. Offenders are lost.

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