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January 15, 2012

Ohio to appeal lower federal court execution stay to Supreme Court

As reported in this new AP article, "Ohio's governor and attorney general said Sunday the state is asking the U.S. Supreme Court for a ruling that Ohio's protocol for carrying out the death penalty is constitutional." Here is more:

Gov. John Kasich and Attorney General Mike DeWine said in a statement that the state wants the high court to reverse a federal appeals court decision to delay the Wednesday execution of Charles Lorraine.

Lorraine was condemned to death in the 1986 slaying of an elderly Trumbull County couple. But the federal appeals court said Friday his execution should be delayed to review changes Ohio has made in carrying out the death penalty.

Lorraine argued that Ohio broke its promise to adhere strictly to its execution procedures. But the state said that deviations from the procedures during the last execution were minor and that an inmate's rights would not be violated by changes, such as which official announces the start and finish times of an injection....

The 6th U.S. Circuit Court of Appeals ruling supported an earlier decision by U.S. District Court Judge Gregory Frost, who criticized the state for deviating from policy when an inmate was executed in November.

After the appeals court ruling, Trumbull County Prosecutor Dennis Watkins sent a letter urging the two state officials to appeal.  Watkins argued the federal courts have wrongly interfered with Ohio executions.

Some related posts concerning Ohio's recent lethal injection litigation: 

January 15, 2012 at 10:52 PM | Permalink


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As Ohio should. It is surpassing strange that the identity of the official announcing the time of death is a federal issue.

Ohio has a one-drug protocol. The only thing that counts is mixing the drugs properly and getting venous access.

Posted by: federalist | Jan 16, 2012 12:04:26 AM

I have not found what I wanted

Posted by: Nick | Jan 16, 2012 11:31:15 AM

horse pucky fed! if they don't want to follow their own law and procedures...STOP PASSING THEM!

Posted by: rodsmith | Jan 16, 2012 2:36:34 PM

rod, when you can explain the federal right that is being violated here, I am all ears

Posted by: federalist | Jan 16, 2012 4:36:30 PM

well fed it's not so much a federal RIGHT! as it is more a case of the state is VIOLATING it's own law...well WHO ARE YOU SUPPOSED TO GET TO STOP THEM!


that would be about as stupid as asking the sam beat cop who just beat the hell out of you for the forms to REPORT HIM! for the violation!

Posted by: rodsmith | Jan 17, 2012 1:10:40 AM

Um, rod, federal courts aren't, generally speaking, enforcers of state law. Particularly in the criminal law context.

Perhaps you'll note that not too many people in here are defending the legality of Judge Frost's order.

Posted by: federalist | Jan 17, 2012 2:02:28 AM


"Um, rod, federal courts aren't, generally speaking, enforcers of state law. Particularly in the criminal law context."

well WHY NOT! they stick their noses into everything ELSE!

as for this!

"Perhaps you'll note that not too many people in here are defending the legality of Judge Frost's order."

SO WHAT! doesn't make them RIGHT! as evidenced by the any number of U.S. SUPREME COURT orders tossing thing EVERYONE THOUGHT WAS RIGHT and LEGAL at the time the order was issued!

Posted by: rodsmith | Jan 17, 2012 10:19:52 AM

Federalist, I don't believe rodsmith is a lawyer (although he is pretty well versed in the law for a layperson). If he were a lawyer, he probably would have pointed out the well-established and logical rule that if a state creates certain important procedures or rules and then proceeds to ignore them, an aggrieved party can sue for a violation of due process (under the *federal* due process clause, the one in the 14th amendment to the United States Constitution).

This is true even if there is no independent federal right to have those procedures or rules enforced (i.e., if the state had not adopted the rules, the aggrieved party would have had no winning constitutional argument for requiring those rules). Although federal law generally doesn't dictate state procedures, in some circumstances it does dictate that once the state has created procedures, it is not free to ignore them (because it has created in its citizens a reasonable, vested interest in the protection of those procedures that is protected by the due process clause).

You are very bright so I'm sure you know this. Perhaps you disagree and wish it were not so. But I am sure you understand the defendant's federal/constitutional argument and the doctrinal basis for it.

Posted by: Anon | Jan 17, 2012 11:30:56 AM

I understand the argument. It's just wrong. The prisoner has no possible due process "vested" interest in the checking of a box or who records the time of death. That latter one is particularly silly--the guy's dead. What possible interest could he have in the identity of the person who records the time of death? There is no free-standing federal right of people to demand that the state must follow its procedures if the person is not harmed by a deviation therefrom.

And on top of that, why does a condemned man get a stay because somehow, somewhere the state deviated from its procedures earlier? Even the imperious Frost understands that there are deviations that are no biggie. Box-checking and the identity of the recorder are no biggies.

And remember too, anon, you're making a DPC argument. Frost hung has hat on EPC, which is surpassing strange.

Posted by: federalist | Jan 17, 2012 12:37:50 PM

Fair enough. I had not read the most recent posts about this, and thought I remembered the basis was DPC, but it appears that is not the case. I also assumed, as would be necessary for DPC argument, that the deviations were meaningful/substantial. Of course, that should probably be required for EPC as well, so maybe judge disagrees with you about that? Or maybe because there is a separate/intertangled issue of complying with a court order, he is justifying tighter scrutiny on that basis, either explicitly or implicitly? (Day after MLK day, appropriate to note Walker v. Birmingham, which reaffirmed parties' duties to obey a court order "however erroneous" it might be...)

Posted by: Anon | Jan 17, 2012 12:54:13 PM

Anon, there is no coercive order requiring the state to comply with its own procedures.

Read Judge Frost's order. It's not a model of clarity.

Posted by: federalist | Jan 17, 2012 1:11:44 PM

I originally posted this on the previous thread, but I suppose I should repost it here:

federalist--"Basically, Frost and the three-judge panel have assumed that the state LI procedures somehow give substantive federal rights to the condemned. This is patently absurd, and the EPC argument is simply cover for that nonsense."

I think you're overlooking something here, federalist--Ohio adopted those procedures because of Baze, and took the position in the litigation that those procedures complied with Baze and were necessary to comply with Baze. It then disregarded those procedures and switched courses, and argued that those procedures weren't necessary to comply with Baze.

You're arguing, essentially, that Frost should confine his review to the question of whether what Ohio might do complies with Baze, even though ODRC has already demonstrated that it can't or won't comply with the protocol it originally felt was necessary to comply with Baze (which, by the way, Frost had approved). So what is a judge supposed to do here, in this procedural posture? Accept that ODRC (who has already demonstrated that its positions are not worthy of trust and has in fact lied to the court under oath) is going to comply with the protocol it has already failed to comply with and now says it doesn't have to comply with?

I understand that you're annoyed with a federal judge overseeing this process, and Frost himself states that if Ohio would just do what it says it's going to do then he'd let the execution go forward. But it either won't or can't--and given that there's a more than reasonable likelihood that two similarly-situated death row inmates will be treated differently whether or not Ohio complies with its own procedures, and that Ohio's position on the protocol is so self-contradictory that it can't even survive rational basis scrutiny, I think it's a fair conclusion that an EPC violation has been presented. Moreover, since Ohio took the position that it's the protocol that complies with Baze, not the substantive deviations from it, there's at least an Eight Amendment gloss on the claim.

I had nothing to do with the litigation of this case, and I don't believe that I would have presented the issues in the same way if I had. But I think you're damned near slandering Judge Frost based on your lack of understanding of the case.

Posted by: Ohio PD | Jan 17, 2012 3:18:38 PM

Slandering the judge--what, by quoting him? Let's face it, Ohio PD, Frost's writing leaves a lot to be desired. And his imperiousness is simply breathtaking. And let's not forget that this nitwit actually argued that having a medical doctor assist in the process, because it was not part of the protocol, was a constitutional

But lets get to the merits of your argument--you argue that somehow Ohio is bound by some position that its LI protocol is the bare minimum that complies with Baze, and that therefore, Ohio, ipso facto, is estopped to deny that it complies with Baze. That's nonsense. First of all, no one can credibly make the argument that the identity of the person who declares the time of death has any bearing on compliance with Baze. That's sheer idiocy, and a sovereign state cannot be presumed to have accepted that sort of federal micromanaging absent the clearest of statements. As for the other issue, a missed check in the box, so what? Is there any evidence that Brooks suffered pain? Nope. Issue done.

The reality is that your interpretation of the EPC clause would be laughed at in any other context. Lessee, a kid in a public school gets one fifth grade teacher when another gets a worse fifth grade teacher. EPC violation?

The fact remains that the EPC is not some writ for federal judges to examine state procedures for discrepancies that don't affect substantial rights. Here, the rights are not to be subjected to a procedure that presents a substantial risk of serious pain. No one credibly argues that Ohio has risked anyone here. Without that, there's no there there.

And on top of all of this, none of these deviations would be an issue if the right Ohio official had signed off on it. So are we really making an argument that not getting permission from an official to do something that doesn't cause harm to the prisoner is an equal protection violation. Are you kidding?

Posted by: federalist | Jan 17, 2012 9:40:25 PM

Well, apparently it's an Equal Protection violation if one hanging chad gets counted . . . oh, but you stepped right into that one.

Anyway, I think you're being willfully misleading. Again, you're ignoring the fact that OHIO LIED. Many times. And while I obviously agree with the underlying factual point you're making about "unnecessary pain," Ohio's willful inability to comply with its own protocol and subsequent dissembling is what makes this an issue. And that's just a fact. One you've ignored. Repeatedly.

Posted by: Ohio PD | Jan 18, 2012 10:25:04 PM

how ture ohio PD this is the same repeated conduct that got calif DOC slammed when it finaly got to the u.s. supreme court. Now of course we can look forward too a few THOUSAND more lawsuits thanks to their assbackward way of complying with SAID COURT ORDER! Just HOW MANY TIMES is the court to sit back and let the state lie to it befroe they finaly HAMMER the state for it's FRAUD!

Posted by: rodsmith | Jan 19, 2012 1:23:10 AM

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