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January 11, 2012

Federal judge again halts Ohio execution because state not following its own protocol

As reported in this piece from the Columbus Dispatch, "U.S. District Judge Gregory Frost today blocked next week’s scheduled execution [in Ohio] of convicted murderer Charles Lorraine because the state has not adhered to its own execution policies."  Here are the basics:

Lorraine, 45, was slated to be executed Jan. 18 for murdering 80-year-old, bedridden Doris Montgomery and her 77-year-old husband, Raymond, in 1986.

However, Frost, who previously raised serious questions about Ohio’s execution procedures, ruled today that the Ohio Department of Rehabilitation and Correction didn’t properly document the drug used or check the medical chart of inmate Reginald Brooks when he was lethally injection on Nov. 15 at the Southern Ohio Correctional Facility near Lucasville.

The ruling today from Judge Frost, in a case now captioned In Re Ohio Execution Protocol, runs 23 pages and can be downloaded below.  Here is how it gets started (emphasis in original):

This case is frustrating.

For close to eight years, the Court has dealt with inmate challenges to the constitutionality of Ohio’s execution protocol.  During that time, the litigation has morphed from focusing primarily on allegations of cruel and unusual punishment to allegations of equal protection violations.  Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms.  Occasionally in this litigation, state agents lie to the Court. At other times, different state actors impress this Court with their sincere devotion to carrying out the unenviable task of executing death-sentenced inmates within constitutional parameters.  As a result of laudable effort by the various state actors involved -- motivated either by duty, embarrassment, the decisions of this Court, or a combination of any of the foregoing -- Ohio finally arrived at a protocol that on paper satisfies every Eighth and Fourteenth Amendment challenge thrown against it.  Then once again Ohio decided to carry out the protocol in a manner that simply ignores a key component of the execution scheme.

The end result is that rather than proceeding to a final conclusion in this case that would enable Ohio to proceed to fulfill its lawful duty to execute inmates sentenced to death free from this ongoing litigation, Ohio has unnecessarily and inexplicably created easily avoidable problems that force this Court to once again stay an execution.

This is frustrating to the Court because no judge is a micro-manager of executions and no judge wants to find himself mired in ongoing litigation in which he must continually babysit the parties.  But the law is what it is, and the facts are what they are.  The Constitution demands that a judge honor the rights embodied in that document, that a judge appreciate the nuance involved in those rights rather than adopting a constitutionally irresponsible, “big-picture, close enough” approach, and that a judge follow the evidence presented by the parties to whatever principled conclusion it leads–no matter how easily avoided and frustrating that conclusion may be.  In other words, if Ohio would only do what it says it will do, everyone involved in this case can finally move on.

Download Ohio LI Opinion and Order

January 11, 2012 at 04:11 PM | Permalink

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Comments

It is time to end this idiot's micromanaging of the execution process. The execution protocol does not create federal substantive rights. He's really going to stop an execution because a chart wasn't documented? Is he f'in nuts. Ohio needs to appeal this stay immediately and ask that this idiot be removed from the case.

Posted by: federalist | Jan 11, 2012 5:03:16 PM

The judge seems to have caught himself in a bit of a trap. He cannot declare that the killer simply doesn't get to be executed--so what's the end game? Ultimately, he cannot enjoin executions in Ohio forever, and he cannot do anything but take the word of the state authorities that they will follow the protocol.

Frost is a bonehead.

Posted by: federalist | Jan 11, 2012 6:35:14 PM

sounds to me fed that the ohio officials are JUST as bonheaded! After all this shit over HOW it is to be done and ONCE they finaly had a procedure that EVERYONE was good with to then NOT follow it could be consdiered CRIMINAL! and if an evil rent seeking lawyer as SC calls em wanted to push it might bring a nice expensive lawsuit from the victims of those NOT being executing because of the state's CRIMINAL FAILURE to follow it's own procedure!

now THAT WOULD BE FUNNY!

Posted by: rodsmith | Jan 11, 2012 9:35:48 PM

The only question properly before a federal court is whether there exists, on the present record, a substantial likelihood of severe pain during the execution. Whether Ohio is following its own state protocols is, per se, not even remotely a question for federal resolution.

I agree with federalist that, at this point, and given the history of the case and some of the language in the instant opinion, Ohio should appeal and ask that Frost be removed. On remand, the new judge should dismiss the suit for want of a federal question.

Posted by: Bill Otis | Jan 12, 2012 3:06:46 AM

Bill, they probably survive a subject matter jurisdiction motion. But not much else. I'd go thru the opinion and rip on Frost, but why bother.

Posted by: federalist | Jan 12, 2012 3:16:44 AM

nice bill but you and fed are BOTH missing the tree for the forrest!

after AGREEING to follow a SPECIFIC procedure via a COURT decision WHY DID THEY NOT FOLLOW IT!

if ANYTHING this judge would be well wihtin his LEGAL RIGHT to have eveyone involved hauled into jail and locked up for CONTEMPT OF COURT for FAILURE to obey a court order!

Posted by: rodsmith | Jan 12, 2012 12:55:25 PM

I wasn't aware, rodsmith, that Frost had issued a coercive order requiring absolute compliance with the protocol.

Against better judgment, I actually read Frost's oeuvre. Here's a sample of the learned judge's writing:

"The problem with reaching this same conclusion here is that by now again endorsing a system in which non-core deviations can occur without approval and without consequence, Ohio has punctured the practice that lent its new protocol the saving grace the Court afforded it in the Brooks Opinion and Order."

Putting aside the torture of the English language, the idea that a federal court affords "saving grace" to a sovereign state rests uncomfortably with the precepts of our federal system.

Judge Frost is an embarrassment. It's that simple.

Posted by: federalist | Jan 12, 2012 3:04:11 PM

Federalist:

How is a judge an embarassment under the facts?

He issued an order. One party makes a filing asserting that the opposing party failed to comply with an order. Following a hearing and extensive briefing the judge determined that the party (the great State of Ohio), in fact, failed to comply with that order. The judge then issued a TRO maintaining the status quo so that the party found to be in violation of his order (again the great State of Ohio)can get their act together. I don't know of any judge, conservative or liberal, that would not vindicate their authority when a party fails to follow an order.

You, Federalist, just fail to realize it is not the subject-mattter that drives the decision -- it is the authority of a federal judge to issue orders and a federal judge's expectations that those affected, i.e., parties, follow those orders. It ain't that hard.

Posted by: k | Jan 12, 2012 8:52:29 PM

k, Judge Frost is an embarrassment for any number of reasons. First of there's the imperiousness that permeates every single LI opinion I've read from the guy. Second, his torturing of the English language is something to behold. Third, his idea that prisoners have federal rights stemming from the violation of the LI protocol alone is preposterous. (If the state violates its protocol, but there is still no violation of Baze, then there is no federal claim, Frost's expansive reading of the EPC notwithstanding.) Fourth, did you read the quote? It's a joke. "Saving grace"?? Is he f'in kidding? Fifth, I don't see how he's basing the decision on the violation of a coercive order by him.

Judge Frost, if you're reading this, you're a disgrace to the bench. Learn how to write (or get some clerks who know how to write). Tone down the imperiousness--you're a federal judge, a public servant, not some petty nobility of an ancient empire. Finally, learn some law. Your EPC analysis sucks. Here's a clue, learned judge, if the deviations don't cause a substantial risk of serious pain, then both the letter-of-the-law executee and the substantial-compliance-with-the-law executee are treated the same as far as the Constitution is concerned.

Posted by: federalist | Jan 12, 2012 9:33:03 PM

well bill i was going by this! from the opinion!

"For close to eight years, the Court has dealt with inmate challenges to the
constitutionality of Ohio’s execution protocol.1 During that time, the litigation has morphed
from focusing primarily on allegations of cruel and unusual punishment to allegations of equal
protection violations. Ohio has been in a dubious cycle of defending often indefensible conduct,
subsequently reforming its protocol when called on that conduct, and then failing to follow
through on its own reforms. Occasionally in this litigation, state agents lie to the Court. At other
times, different state actors impress this Court with their sincere devotion to carrying out the
unenviable task of executing death-sentenced inmates within constitutional parameters. As a
result of laudable effort by the various state actors involved–motivated either by duty,
embarrassment, the decisions of this Court, or a combination of any of the foregoing–Ohio
finally arrived at a protocol that on paper satisfies every Eighth and Fourteenth Amendment
challenge thrown against it."

then there was this part!

"The next inmate seeking a stay via injunctive relief to come before this Court was
Reginald Brooks. Brooks’ stay motion came on for a hearing from October 31, 2011 through
November 2, 2011. The Court took the motion under advisement and, after examining the new
protocol and the proffered evidence of Defendants’ practices in implementing that protocol,
issued a November 4, 2011 Opinion and Order that explained that “[t]he dispositive questions . .
. have been whether [Brooks] is correct that Defendants routinely deviate from mandated or core
provisions set forth in the written protocol and whether [Brooks] has sufficiently proved that the
protocol fails to address sufficiently varied constitutional concerns. The answer to both
questions is no.” Notably, the crux of the rationale behind that decision is that Brooks failed to present
evidence that he was likely to prove that Defendants are not doing what they say they are doing
in conducting executions under the current protocol. Of significance is that, unlike in the Smith proceedings, Defendants were now saying that they got the message that it mattered that their
actions matched their words. Trust us, Defendants said, we will not deviate from the core
components of the protocol. This Court accepted that contention. Trust us, Defendants
continued, we will let only the Director decide whether to allow any potentially permissible
deviation from the non-core components of the protocol. This Court also accepted that
statement. As set forth below, Defendants have once again fooled the Court."

so basicaly the state has lied and lied and lied and lied over and over to the court! Now they have been called on it!

if this judge had any real guts he'd not only TOSS the whole law and tell them they can now try agin MAYBE WITHOUT the LIES!

BUT issue a nice long list of bench warrants for contempt of court and FRAUD!

Posted by: rodsmith | Jan 13, 2012 1:39:04 AM

Come on guys, let's see you defend this:

"The problem with reaching this same conclusion here is that by now again endorsing a system in which non-core deviations can occur without approval and without consequence, Ohio has punctured the practice that lent its new protocol the saving grace the Court afforded it in the Brooks Opinion and Order."

Posted by: federalist | Jan 13, 2012 3:04:11 PM

what's that fed? you coming over to my side?

now me i'm not for or against the DP i know that some crimes just scream for only that punishemt. But i also want it to be done correctly and applied with at least a minimum effort of fairness. At that very lest i expect like the court seems to...that the indiviudals in charge of enforcing and applying it at least FOLLOW THEIR OWN RULES!

Posted by: rodsmith | Jan 13, 2012 4:12:22 PM

No, I am not coming to your side. The condemned has no federal right to have the state follow these rules down to the crossing of every T. The condemned has a right not to have an execution process that satisfies the Baze standard. The minor deviations don't alter the safety of the execution--I mean, really, Ohio uses a one-drug protocol. So long as the needle gets inserted and the drug flows, there is essentially zero risk here.

Frost is a joke.

Posted by: federalist | Jan 13, 2012 4:51:31 PM

Federalist, is posting comments on this blog your full-time job?

Oh, and you should note:
http://www.dispatch.com/content/stories/local/2012/01/13/appeals-court-execution-delay.html

Posted by: Ohio PD | Jan 13, 2012 7:12:54 PM

Saw that Ohio PD. Perhaps you can identify what substantive federal right comes from the state's LI protocol in and of itself, and perhaps you can identify where any of these deviations would possibly cause any risk, given that Ohio uses a one-drug protocol?

Posted by: federalist | Jan 13, 2012 8:36:02 PM

Bill Otis: nice to see you can copy-paste from the State's briefing. Or did you have a hand in the briefing perhaps?

Federalist: Please explain how failing to apply the state law equally (by deviating from the protocol) is NOT a violation of the epc? No different than failing to apply state election laws equally. Bush v. Gore seems to ring a bell...

Posted by: Some Guy | Jan 13, 2012 11:42:06 PM

hmm

"No, I am not coming to your side. The condemned has no federal right to have the state follow these rules down to the crossing of every T. The condemned has a right not to have an execution process that satisfies the Baze standard. The minor deviations don't alter the safety of the execution--I mean, really, Ohio uses a one-drug protocol. So long as the needle gets inserted and the drug flows, there is essentially zero risk here.

Frost is a joke."

Nope that was this post!

Here i though the WHOLE reason we had POLICIES AND PROCEDURES was to MAKE SURE every "T" was crossed and every "I" was dotted!

other wise WHY HAVE EM IN THE FIRST PLACE!

IF you are right though what Ohio should have done was say "we dont' need a Policy or a Procedure to shove a needle with poison into an arm....Hell any idiot can manage that MAYBE EVEN a politcian!

BUT they DIDN'T they spent god only knows how much to create a LEGAL set of POLICIES and PROCEDURES that were REQUIRED to be followed when executing someone....then the retards didn't bother to follow it!

Posted by: rodsmith | Jan 14, 2012 12:37:52 AM

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