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January 14, 2012

Sixth Circuit panel upholds stay of Ohio's next planned execution

Late yesterday (after I was off-line for the night), a Sixth Circuit panel issued this brief order rejecting the state of Ohio's motion to vacate the stay of execution that a US District Judge granted earlier this week.  Here is the heart of the order's substantive discussion:

Based upon the analysis of the district court’s January 11, 2012 Opinion and Order granting a preliminary injunction and a stay of execution, as well as the district court’s July 8, 2011 Opinion and Order entered in this same litigation and reported at 801 F. Supp.2d 623 (S.D. Ohio 2011), we conclude that the State’s arguments in support of the emergency motion to vacate the stay are not well-taken. We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted.   As the district court found, whether slight or significant deviations from the protocol occur, the State’s ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.

The State’s emergency motion to vacate the stay is DENIED. The stay will remain in place until further order from the district court on the hearing set for February 24, 2012.

I assume the state is considering seeking en banc review in the Sixth Circuit and/or Supreme Court review of this execution stay, but it is hard to assess whether the state's likelihood of success with further appeals might justify the effort.

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

January 14, 2012 at 09:49 AM | Permalink

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Comments

I couldn't post on the other thread. Here's the post:

With respect to the EPC, this isnt very hard. First off, even Frost himself acknowledges that not every deviation triggers Equal Protection. So you cannot make the argument that every deviation equals a federal constitutional problem. And such an argument would be silly---any human enterprise simply cannot be exactly equal to all that come in contact with it. Additionally, perfection is a standard that no human enterprise can meet.

The upshot of all this is that you have to look at whether the prisoner has lost something he is entitled to, and in this case, what he is entitled to is an execution that complies with Baze. So long as the deviations don't impact that, then there is simply no issue. And think about it, to take Frost's view is to convey substantive rights with respect to state procedures that aren't intended to be given. This expansive view of Equal Protection finds no home in any of the caselaw (note how Frost cites little). And think about how such an expansive view of Equal Protection would impact the real world. Any time a procedure wasn't followed, you'd have a federal case.

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.

Lost in all of this, of course, are the victims' families. That nitwit Frost talks about the public interest. Well, unanimous Supreme Court caselaw says that the interests of the State in timely enforcement of its criminal judgments need to be considered. And on top of that the interests of the victims' families. That is notably absent from Frost's "analysis" and, for that matter, the "analysis" of the Sixth Circuit. Federal courts don't exist to flyspeck state LI procedures. That's what is going on here.

rodsmith, dude, perhaps you can explain how state LI procedures confer substantive rights. You are missing that link. You keep yapping that the state didn't follow its procedures. Without a showing meeting the Baze standard, the answer is "so what."

These four judges are contemptible.

Posted by: federalist | Jan 14, 2012 12:27:57 PM

"I assume the state is considering seeking en banc review in the Sixth Circuit and/or Supreme Court review of this execution stay, but it is hard to assess whether the state's likelihood of success with further appeals might justify the effort."

Given the fact this Charles Lorraine committed a brutal double murder, the victims' family deserves the efforts of the State to make this execution happen. The stay here was an appalling abuse, and the Supreme Court needs to put a stop to it. Someone didn't check a box, and the idiot Frost decides to put the families through more torture. Words cannot express my contempt for this ignorant fool of a judge. That the Sixth Circuit compounded the error is worse.

The irresponsibility of federal courts when it comes to executions continues apace. It needs to stop.

Gingrich was a damned fool for suggesting that judges should be arrested. But nonsense like this gives fuel to his idiocy.

Posted by: federalist | Jan 14, 2012 12:32:25 PM

hmm

"rodsmith, dude, perhaps you can explain how state LI procedures confer substantive rights. You are missing that link. You keep yapping that the state didn't follow its procedures. Without a showing meeting the Baze standard, the answer is "so what."

i'm NOT missing the link as you call it. IF you would learn your HISTORY most Policies and Procedures are the RESULT of YEARS and YEARS of LAWSUITS and COURT ORDERS that are created to AVOID them in the future. So i STAND by my statement that once they are in place ESCPECIALY in the MIDDLE OF A CURRENT COURT BATTLE to NOT FOLLOW THEM IS CRIMINAL!

and should result in a major lawsuit by the victims of those who WOULD HAVE BEEN EXECUTED had the STATE DONE IT'S DAMN JOB AND FOLLOWED THEM!

Posted by: rodsmith | Jan 14, 2012 1:54:00 PM

as for this!

""I assume the state is considering seeking en banc review in the Sixth Circuit and/or Supreme Court review of this execution stay, but it is hard to assess whether the state's likelihood of success with further appeals might justify the effort."

Given the fact this Charles Lorraine committed a brutal double murder, the victims' family deserves the efforts of the State to make this execution happen. The stay here was an appalling abuse, and the Supreme Court needs to put a stop to it. Someone didn't check a box, and the idiot Frost decides to put the families through more torture. Words cannot express my contempt for this ignorant fool of a judge. That the Sixth Circuit compounded the error is worse.

The irresponsibility of federal courts when it comes to executions continues apace. It needs to stop.

Gingrich was a damned fool for suggesting that judges should be arrested. But nonsense like this gives fuel to his idiocy."

I reserve my CONTEMPT for the idiot who knew he HAD TO CHECK THE BOX but didn't bother!. the sad thing is he probably didn't bother becasue he knew he would find people like yourself who would help COVER FOR HIM in his FAILURE TO DO HIS JOB LEGALLY!

Posted by: rodsmith | Jan 14, 2012 1:56:53 PM

federalist
with all due respect, there is one way to do things: the right way and what is in writing. I find it hard to believe that Ohio cannot find someone in the DOC that can monitor every aspect of an execution. If they are hoping to have one every month for the next few years, I would suggest they seek someone out who is meticulous with the end result being no more micro-managing by Frost.

Posted by: DaveP | Jan 14, 2012 3:06:03 PM

DaveP--that does not confer substantive rights. Executions should not be held up because someone didn't check a box. None of this remotely suggests that the execution should be delayed. None of it. That's the issue. Yes, Ohio has to live with this idiot and thus has to placate him, so they're going to have to turn square corners. But Frost is the issue.


Posted by: federalist | Jan 14, 2012 3:51:57 PM

federalist

The premise of my post is that Ohio has to be PERFECT in carrying out it's protocol. The defense attorneys are going to attempt to find anything the state did that didn't follow the protocol. Everytime the smallest detail is not followed, they are going to go marching to Frost's courtroom. To them, delay is winning.

As in my previous post, Ohio better meticulously monitor its protocol or Frost is never going to let this case go.

Also, I don't know the 3rd judge on the panel but Norris and Suhrheinrich vote with the state the vast majority of the time on death cases.

Posted by: DaveP | Jan 14, 2012 4:05:42 PM

I hear you. But perfection is not required, and federal courts have no business monitoring state execution procedures for minor errors that have zero impact on the risk of pain, and the EPC analysis is a joke. I know the two judges, Surheinreich and Norris have decent records on DP, they're dead wrong on the law here.


Posted by: federalist | Jan 14, 2012 6:08:58 PM

hmm

"DaveP--that does not confer substantive rights. Executions should not be held up because someone didn't check a box."

tell that to the poor saps on our ever popular and illegal megan's law regisry who can get years if NOT DECADES for failing to CHECK A BOX!

sorry if it's a CRIME for one person it's a CRIME for EVERYONE!

Posted by: rodsmith | Jan 15, 2012 12:18:00 AM

you know what's really sad federalist! you are one of those indiviudals who push the death penalty no matter what! that all you do is manage to piss off anyone who is not with you! No matter what side they are on!

I can't belive it's not sunk into your brain that the state had a LEGAL PROCEDURE ironed out over YEARS and YEARS of court cases and legal battles in court! and you think it's perfectly LEGAL for them NOT to follow it!

and your a lawyer?

Posted by: rodsmith | Jan 15, 2012 12:21:15 AM

federalist

I doubt Ohio would be successful asking for an en banc ruling from the 6th Circuit. If they petition SCOTUS and the stay is vacated, you will be vindicated. But, I doubt this will happen.

Why can't these states follow what it is writing? Fortunately,Arizona won their case in federal district court a couple of weeks ago. If rules were followed, there wouldn't be any of this endless litigation on protocol.

Posted by: DaveP | Jan 15, 2012 9:23:13 AM

i'm with you dave considering how SHORTLY they spanked the state for it's lies and omissions i see no friends on the appeals court for the state's position and considering how many hot potatoes the supremes are juggling i doubt they want to wade into a new one.

Not when it's already been settled. Follow YOUR OWN procederes and go for it or REFUSE and kiss your death penalty goodbye!

the CHOICE IS YOURS!

Posted by: rodsmith | Jan 15, 2012 10:46:07 AM

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 11:45:06 AM

that would give you a BINGO Ohio PD you hit it right on the head!

i'm sure this federal judge has any number of other cases to deal with and would LOVE to get rid of this case and could if the state would just FOLLOW IT'S OWN LAW!

but so far they have not only FAILED miserably but LIED about their FAILURE UNDER OATH!

guess they have been taking lessons from the cops and the DA's and other judges when they get ironclad evidence of cops getting caught beating the suspect half to death while giving their so-called "VOLUNTARY CONFESSION" but when it hits the courts usualy YEARS after the fact...it's called "HARMLESS ERROR"

sorry just like in those cases...in this one it's bull shit!

Posted by: rodsmith | Jan 18, 2012 8:10:38 PM

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