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February 9, 2012

Which elected official(s) should Ohio voters hold accountable for the legal mess with its execution process?

The question in the title of this post is my reaction to this new piece in Cleveland Plain Dealer, which is headlined "U.S. Supreme Court's decision brings execution of prisoners in Ohio to halt."  First, he are some notable parts of this latest press review of where legal story stands:

A U.S. Supreme Court decision on Wednesday has effectively put executions on hold in Ohio.

Until Ohio revises its lethal injection procedures to the satisfaction of a federal judge on the case, no more inmates will be executed, Ohio Attorney General Mike DeWine acknowledged.   "I can't predict what is going to happen," said DeWine, whose office represents Gov. John Kasich and the Ohio Department of Rehabilitation and Correction. "The next scheduled execution is for April, and so that's a little ways off, and we'll just see what happens between now and then."

Kasich and DRC had appealed two federal court rulings that had blocked the scheduled Jan. 18 execution of a Trumbull County double murderer.  But the Supreme Court, without explanation, declined to hear the case, letting the lower court rulings stand.   That means the stay of execution granted to Charles Lorraine by a district judge and upheld by a federal appeals panel will remain in place.  Lorraine is one of about a dozen death row inmates suing the state, claiming Ohio's lethal injection procedures are unconstitutional.

With that case pending, Ohio had continued to execute inmates.  But Lorraine successfully argued that the question of whether the procedures are unconstitutional could have merit and he should be allowed to live long enough to participate in a trial.  The court rulings to this point involve only Lorraine's request to stave off execution and not on whether Ohio's execution process passes constitutional muster.

"The evidence we've presented makes it substantially likely that Lorraine would win at trial," said the inmate's attorney Allen Bohnert, a federal assistant public defender.  "So as a result of that and some other factors, fairness says he should be able to participate in that trial which would be impossible, obviously, if he had been executed on Jan. 18." Bohnert said that Kasich should make a moratorium on executions official in view of the ruling.

The original order was issued by U.S. District Judge Gregory Frost of the Southern District of Ohio. Frost has handled several cases questioning Ohio's death penalty procedures in recent years and ordered changes.  He didn't hide his frustration with the state for how it has handled this issue.  "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," Frost wrote in his scathing Jan. 11, 2012 ruling in favor of Lorraine....

The state appealed to the U.S. Sixth Circuit Court of Appeals, saying that none of the items -- which it called "deviations" -- noted by Frost would mean Ohio's procedures are unlawful, so Lorraine's execution should be carried out....  The appeals court backed Frost.

DeWine said DRC was already revising its execution procedures even before the Supreme Court was asked to review Lorraine's case. And while the state was making changes, DeWine said he still sought to carry out Lorraine's execution because he didn't agree with Frost's ruling. "We believe that the discrepancies cited by Judge Frost do not rise to a constitutional violation," DeWine said.

DeWine said when DRC completes its revision of the procedures he will present them to Frost, who must sign off on them before executions can resume.

Anyone not readily convinced by the court rulings in this on-going litigation or not really concerned about the execution process might be inclined just to blame federal judges for this legal mess.  But, besides the fact that Judge Frost and the Sixth Circuit (not to mention the Roberts Court) do not have reputations as radical judicial activists, there is nothing the voters in the state of Ohio can do about these appointed jurists.  Moreover, their rulings seem principally responsive to the ugly realities of how Ohio is administering executions and how poorly the state is responding to legal complains by death row defendants.  After all, none of this legal mess would not have happened absent Ohio's "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."

Against this backdrop, I am genuinely interested and eager to hear from readers who should Ohio voters seek to hold accountable for this legal mess, which not only is delaying the achievement of justice for society and victims, but also is surely costing the taxpayers a pretty penny?  (For the record, none of these execution protocol issues have yet been discussed or even raised by the Ohio Joint Task Force currently studying the death penalty on which I have the honor of serving.)

Notably, a lot of these problems seem to be festering during the prior (Democratic) Ohio administration of Gov. Ted Strickland and AG Richard Cordray.  But those folks were shown the door by Ohio voters in 2010, and now it is Gov. John Kasich and AG Mike DeWine in charge.  Are they the ones to be held accountable?  Should elected members of the Ohio General Assembly be faulted for not having hearings and trying to help clean up this mess?  

Tellingly, the Plain Dealer has this companion piece which is headlined "Should Ohio consider putting a permanent hold on the death penalty? A Closer Look."   That is, of course, a key substantive question lurking behind all that is on-going in the state.   But this post is intended to explore whether and how the political process can and should respond to these sorts of death penalty administration problems.

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

February 9, 2012 at 10:53 AM | Permalink

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Comments

Doug, have you ever read Frost's opinions? The guy is intemperate and a loose cannon (besides being a god-awful writer). He accuses people of lying (which may or may not be true) without a careful accounting of the facts (or giving the person the change to defend him/herself). And really, because the wrong person recorded the time of death? That's an issue? That's insane. And his EPC analysis is ridiculous.

Let's face it, Frost got it wrong to start with, and he continues to insist on his ability to micromanage the DP process. The issue is that someone didn't sign off on a protocol change, not that the change was problematic. What a joke.

You're right that the reality is that he isn't going anywhere, but you whitewash the problems with this judge and "ugly realities" is an over-the-top descriptor, particularly given the fact that Ohio has a one-drug protocol which eliminates just about every issue.

Posted by: federalist | Feb 9, 2012 11:43:22 AM

I have read Judge Frost's opinions, federalist, and I assume so too have the lawyers for Ohio and (all?) the judges of the Sixth Circuit. If Judge Frost's work in these opinions is so obviously bad, how do you account for Ohio's failure even to appeal his big EPC ruling last summer and its inability to get a reversal of his more recent opinion?

Without judging the merits --- in part because I did not hear (or have time to reads transcripts) of the trial testimony; did you? --- I will readily agree that Judge Frost's rulings here are "novel" and certainly subject to reasonable dispute on both the factual and legal merits. But even if one accepts your assertions about Judge Frost's work here --- indeed, especially if one accepts these assertion --- then I think a lot of blame has to be placed on Ohio's AG and his litigation team. Perhaps they should bring you in as a special assistant, since you seem confident that the opinions now delaying/preventing capital justice in Ohio are "ridiculous" and a "joke." If these adjectives are truly sound, then DeWine really is washed up and Ohio needs someone new to represent its interests.

Posted by: Doug B. | Feb 9, 2012 1:55:51 PM

Professor - Of course federalist hasn't read the trial transcript. He's just a coward who "spits from behind the curtain" without bothering to inform himself re that which he's spitting about.

Posted by: bok | Feb 9, 2012 2:41:41 PM

Doug, what's Dewine supposed to do? I agree that he hasn't been aggressive enough, but this guy Frost (who got it wrong, by the way, on the three-drug protocol) has obvious issues. Dewine probably thought that he'd always have to deal with him and so caved on some things, not expecting that he'd be holding Ohio to account for having the wrong person certify the time of death.

And it's curious that you won't pass judgment on his godawful writing (need I quote more) but will characterize the "ugly realities." We are talking about things that NO ONE seriously argues put the prisoners at risk of harm.

Posted by: federalist | Feb 9, 2012 3:14:40 PM

When States establish their own rules of procedure, they ought to adhere to them. They certainly ought to be required to adhere to their own rules in matters involving executions.

A State's failure to play by the rules of the "game" it has established can give rise to a due process violation. Such is the case here, according to Judge Frost. The 6th Cir. affirmed his ruling. (Frost's written decision is not going to win any literary prizes; however, his points are conveyed clearly enough; I don't have a problem with judges cranking out quick opinions when a life hangs in the balance.)

Federalist just doesn't like the result.

Has the Ohio AG come knocking on Federalist's door yet?

Posted by: Calif. Capital Defense Counsel | Feb 9, 2012 3:30:44 PM

"When States establish their own rules of procedure, they ought to adhere to them. They certainly ought to be required to adhere to their own rules in matters involving executions."

"Ought", last I checked, is not a synonym for "Equal Protection violation." CCDC, you may want to check Frost's opinion--he's talking EPC, not Due Process. How come no one can defend Frost's decision that the identity of the certifier of death is a problem? The guy was already dead. Even if there were some sort of EPC violation arising from the deviations from the protocol, a very dubious proposition, surely post-mortem deviations cannot be an issue.

That the Sixth Circuit upheld the stay is really not that telling. They didn't look at the merits.

Posted by: federalist | Feb 9, 2012 3:50:20 PM

Federalist: Is an individual receiving the process he/she is due if he/she is being subjected to a process that denies him/her equal protection under the law?

Posted by: Calif. Capital Defense Counsel | Feb 9, 2012 5:53:25 PM

federalist's full-time job is commenting on this blog.

Posted by: Ohio PD | Feb 9, 2012 6:37:55 PM

Luckily the Ohio death penalty study committe has such a balanced, objective, "dp-agnostic," disappointed-in-the-Ohio AG, UN-ELECTED expert like the professor to (impatiently) help get the Ohio executions going again.

We're ALL safe now - including, for example, Tyrone Noling.

Posted by: anondenominational | Feb 9, 2012 7:32:39 PM

CCDC, that question shows that you did not read Frost's opinions very carefully. He based his decision on EPC. As for Due Process, the issue is substantive rights, and, for the most part, so long as Ohio doesn't violate Baze, due process is satisfied. The EPC is hardly concerned with whether some minor functionary signs off on some minor deviation from a written down protocol. If that were the case, governments everywhere would be ensnared in EPC litigation over trivial differences in how they deal with members of the public. People aren't perfect, and government certainly isn't. The law recognizes that. Let's take this hypo: let's say one Ohio executioner is particularly adept at inserting needles, and the other one, while minimally competent, isn't. Can the person in charge of the team allow the really good one to go on vacation so that the one who isn't as good will have to do the execution? The answer, of course, is no. Given that Ohio has a one-drug protocol, the consequences to the condemned in my hypo are worse than those in real life, yet an EPC argument would (or should, anyway) get laughed out of court.

OK, so now that I've answered your question--you care to defend Frost's ridiculous determination that the identity of the person certifying time of death has relevance? The guy is dead.

Ohio PD, why don't you try dealing with the arguments, rather than resorting to insults. I don't mind the insults. Just would like to see some analysis.

Posted by: federalist | Feb 10, 2012 9:14:09 AM

And Doug, you never gave your opinion on the judge coming to the bald conclusion that state employees lied.

Posted by: federalist | Feb 10, 2012 12:42:50 PM

Without being present at the hearings or spending all my time reviewing the voluminous record here, federalist, how am I supposed to have a truly informed and objective opinion on the judge's conclusion that state employees lied? In part because I have a day job, AND in part because far too many (most? nearly all?) commentors on the death penalty seem too often to reach conclusions based on predetermined views on this form of punishment, I often try to avoid making quick judgments on these topics in general, and especially when I have reason to believe that facts are in dispute.

I should add, here, that I have a personal bias: I know Judge Frost, like him very much, and I have particular respect for his judgment based on my personal interactions with him. For this reason, I am even more inclined to believe him than I am inclined to believe just any random federal judge. Moreover, I am generally more inclined to believe federal judges (who are appointed by the Prez and confirm by the Senate) than just any random person.

I could go on and on, but I continue to find worrisome your eagerness to beat up on Frost while giving the Ohio AG and others a relative pass. If matters are so bad and Frost is so biased/misguidelined, Ohio could not only keep appealing these matters to the 6th Circuit (perhaps via a mandamus action or though other means), but they could also seek to get Frost off the case. The fact that it has not done any of this confirms my view that there is at least something "ugly" going on, even if it is not as ugly as Judge Frost sees matters.

Posted by: Doug B. | Feb 10, 2012 1:08:36 PM

Doug, my point with respect to Frost's conclusions about lying is not that he is incorrect. There is no way of knowing that. My point is that he put it in an opinion without setting out in detail how he arrived at that conclusion, nor does it appear that he has given the accused liars a chance to defend themselves. That's not how it's supposed to work.

With respect to the AG--I can't speak to the AG's motivations. The "don't piss off the judge" thing may be at work here. As for "ugliness," well, I don't think you need to read the record, just Judge Frost's opinions. He sets forth what he thinks is "ugly" (although I cannot recall off the top of my head whether he used that term). Is it really "ugly" that the incorrect person certified the time of death? None of the deviations identified by Frost would have been problematic had they been approved by the proper official, so are they even an issue? Not unless we've constitutionalized the identity of on the spot decisionmakers on a lethal injection team, which, last I checked has not happened.

And it cannot be forgotten that Ohio has a one-drug protocol. What possible difference could any of these deviations make in that context? "Ugly" is hardly the word I'd choose. Particularly on the say-so of Judge Frost, who seems to have a penchant for over-the-top commentary in his legal opinions and whose conclusions have been suspect.

You find my criticism worrisome? What, because I call him out in strong terms? I've quoted the guy for years in the blog, and let's face it, the quotes do not reflect a great deal of credit on him. And his legal analysis at times has been curious. (Remember the one a few years back where he cited contract cases as a justification for imposing a stay? Curious is probably the mildest characterization of that nonsense. I commented on it in here, so you can look it up.) You may like the guy--but you never defend any of his stuff on the merits--but you'll trash the Ohio DP team. Funny how profs and judges stick together.

I have nothing but contempt for Judge Frost. From his writings, he appears to be imperious and a dim bulb. It is truly a shame that victims' families have to be subjected to this. Can you imagine being a family member of a death row inmate victim--only to find that justice is thwarted because some federal judge is upset because the wrong team member certified the time of death? If I were trying, I don't think I could think of a more telling example of disrespect for a state's (and victim's) interest in seeing state criminal judgments enforced.

Posted by: federalist | Feb 10, 2012 1:40:12 PM

"Doug, my point with respect to Frost's conclusions about lying is not that he is incorrect. There is no way of knowing that. My point is that he put it in an opinion without setting out in detail how he arrived at that conclusion, nor does it appear that he has given the accused liars a chance to defend themselves."

The witness acknowledged that testimony he had given at an earlier proceeding was false and that he knew it was false. It's on page 11.

Posted by: anon | Feb 10, 2012 2:11:07 PM

Anon, page 11 is hardly a model of clarity, and there were two witnesses not one. Frost is casting aspersions without citation to the record (he doesn't quote the doctor's testimony alleged to concede the falsity of his previous testimony), any determination of materiality etc. It's not how it's supposed to be done. For a bunch so into procedure and process, it's amazing this passes without comment from you. Like I said, I don't take a position on whether these two were lying or not---I just don't really think Frost's opinion is all that fair on the point, particularly to the nurse. And remember, anon, in one of Judge Frost's idiotic opinions, he faulted the state for involving a medical doctor because it wasn't part of the protocol. This is surpassing dumb. Care to defend that?

Of course, given that Baze hardly authorizes this sort of detailed discovery, there are issues with Frost plastering names of the execution team all over his numerous opinions.

Posted by: federalist | Feb 10, 2012 2:44:32 PM

Here are some quotes from Frost:

"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 this Court afforded it in the Brooks Opinion and Order."

Note the imperiousness--the Court doesn't afford "saving grace", the law does, and the prose is just awful.

The opinion is littered with this. At bottom, Frost thinks it an EPC violation that there was deviation from the protocol that was not signed off on by the proper person. Doug--there's simply no defense to that idiocy.

Posted by: federalist | Feb 10, 2012 2:52:05 PM

anon, take a look at page 11--where's the quote of the statement? Assessment of materiality (if the doc didn't know, then that arguably is better for the criminals)? And what about the nurse.

You guys are into process/procedure etc. What's the deal with silence on this stuff?

Posted by: federalist | Feb 10, 2012 2:58:38 PM

"he faulted the state for involving a medical doctor because it wasn't part of the protocol. This is surpassing dumb. Care to defend that?"

Sure. Adding a new member to the execution team in the middle of an execution is a pretty extreme deviation from the protocol.

"anon, take a look at page 11--where's the quote of the statement? Assessment of materiality (if the doc didn't know, then that arguably is better for the criminals)? And what about the nurse."

You're talking about two different issues. Materiality is an element of perjury. A lie is a lie, whether it's material or not. Frost didn't make a finding that the nurse had lied, he said her testimony was possibly false.

"You guys are into process/procedure etc. What's the deal with silence on this stuff?"

You sound like somebody who is running out of straws to grasp.

Posted by: anon | Feb 10, 2012 3:16:41 PM

Anon, if you think that adding a medical doctor to consult on an execution causes a constitutional problem, then, quite bluntly, you are nuts. Remember, the whole point of Baze etc. is not the protocol but compliance with Baze and ensuring that inmates don't suffer. Bringing a doctor into the process, deviation from the protocol or not, reduces risk of pain. Thus, by definition, the defendant is not harmed, and, without harm, there is no basis to complain, or did you miss that day of law school? Moreover, let's not forget that federal courts don't exist to enforce state procedures---there has to be the denial of a federal right . . . .

Second, as for Frost's assertion of falsity--my problem is the lack of details. Ive said that from the start. That's not grasping at straws.

But it is funny--you don't even try to defend some of Frost's utter silliness. Go back and read his whiny 159 page screed on before the Biros execution. The man's an idiot.

Posted by: federalist | Feb 10, 2012 3:47:25 PM

"Remember, the whole point of Baze etc. is not the protocol but compliance with Baze and ensuring that inmates don't suffer."

You keep pretending that Baze forbids any lethal injection litigation that does not involve a pure Eighth Amendment claim. That's nonsense. Baze applies to pure Eighth Amendment claims, and that's all it applies to. There isn't anything in Baze that says every other part of the Constitution is completely irrelevant to an execution protocol.

"let's not forget that federal courts don't exist to enforce state procedures---there has to be the denial of a federal right"

Arbitrary application of state law without a rational basis violates the Equal Protection Clause. Did you miss that day of law school?

Posted by: anon | Feb 10, 2012 4:47:26 PM

No, I didn't miss that day of law school, but I was also there on the day when they said that someone has to have the right to complain, and fundamental to one's right to complain is one suffering injury. And a condemned man has no right to complain about the state consulting a doctor because it doesn't harm him. And it's not arbitrary in the first place to consult a doctor. By the by, even Frost himself has conceded that deviations that benefit the condemned are ok. So he's contradicted himself on that one, unless someone wants to make the argument that the involvement of a medical doctor increases the risk, rather than decreases it.

As for Baze, please show me where I have said that Baze forbids any such litigation. The issue is whether the federal courts can supervise state LI procedures that don't implicate Baze. Federal courts don't sit with a free-roving mandate to police state compliance with state law. But let's just assume that equal protection concerns are implicated here--and that's really dubious for any number of reasons, not the least of which is that so long as the needle goes in correctly, and the right chemicals are introduced, how the state got to that point (assuming that the protocol, as deviated from, doesn't materially increase the risk) is irrelevant because he has gotten equal protection--there has to be harm. And where there is no harm, there is no case.

Posted by: federalist | Feb 10, 2012 5:43:36 PM

Anon, I think my last post was a little complicated. Let's say the state was handing out a $50 tax rebate to every left-handed person. And let's say there was a process to determine who was left-handed. Could a left-handed person who is in line to get the money complain that the wrong state official made the determination of left-handedness of other people?

Posted by: federalist | Feb 10, 2012 5:46:27 PM

Arizona deviated from their protocol and US District Judge Neil Wake ruled against the inmates. Ohio did it and Frost placed an injunction. I will have to read up on the disparity or someone enlighten me.

Posted by: DaveP | Feb 10, 2012 6:09:38 PM

Where is the harm to the inmate? Sans harm, there seems to be no case.

Posted by: federalist | Feb 10, 2012 6:16:50 PM

DaveP, read Frost's 159 page opinion and you'll see why. The man doesn't like executions, for whatever reason.

Posted by: federalist | Feb 10, 2012 6:24:40 PM

It will be interesting to see what the 9th Circuit does with Wake's ruling. I think Arizona deviated from what they testified to a couple of years earlier in Wake's court when he upheld the protocol. I wish Doug would do a piece on the difference. I am going to try and get Wake's order.

Posted by: DaveP | Feb 10, 2012 6:32:44 PM

"Anon, I think my last post was a little complicated. Let's say the state was handing out a $50 tax rebate to every left-handed person. And let's say there was a process to determine who was left-handed. Could a left-handed person who is in line to get the money complain that the wrong state official made the determination of left-handedness of other people?"

In addition to making Frost's prose read like Shakespeare by comparison, that hypothetical is flawed on too many levels to count, so I'm not going to deal with it. Here's one that's actually on point:

Ron Paul wins the presidency and unsuccessfully attempts to abolish the IRS. Having been thwarted in his efforts, he manages to ram through a bunch of brand new and very detailed mandatory internal procedural protocols that the IRS is required to follow in every case before selecting somebody to audit. The IRS deliberately refuses to follow them in every single case.

No EPC violation?

Posted by: anon | Feb 10, 2012 6:46:38 PM

Well, anon, actually, there wouldn't be an EPC violation. Last I checked, the 14th Amendment started with "No State shall . . . . ." But putting that little bit of legal education to one side . . . .

Your hypo is actually completely off. First of all, you posit a federal hypo, and one of the issues I have raised is the "federal courts don't have a generalized mandate to enforce state laws," so your hypo is problematic on that front. Second, equal protection isn't really implicated in yours--(i.e., equal protection as applied to the federal government thru 5th Amendment DPC). What you're arguing is that there are binding conditions precedent to the audit process enforceable as a matter of federal law. Well, that's a substantive issue, unless now everything is equal protection, and that isn't the law. And what's the complaint--the auditees are being treated differently from whom? Those who weren't audited? But assuming that the IRS follows its (as opposed to Ron Paul's) policies, no one is being deprived of equal protection--it's just a wholesale violation of the law.

My hypo is actually dead on, other than the fact that an execution is different from $50 in that the left-handed person is getting a benefit. I deliberately chose that because of the similarity to the situation with the doctor that you said was a problem. (I note your lack of response to that.)

So I'll pick another hypo: State has administrative procedures for the hiring of police officers, but Officer Friendly is hired with minor deviations from said procedures. Can those arrested by Officer Friendly make out a valid EPC claim because they were arrested by a person who wasn't hired in accordance with state administrative procedures? Is there any federal claim here?

Posted by: federalist | Feb 10, 2012 7:29:26 PM

Come on Ohio PD--you want some of this?

Posted by: federalist | Feb 10, 2012 8:25:28 PM

"Well, anon, actually, there wouldn't be an EPC violation. Last I checked, the 14th Amendment started with "No State shall . . . . ." But putting that little bit of legal education to one side . . . ."

The implied EPC, sorry. Feel free to make it an audit by a state after Ron Paul won the governorship, if you're more comfortable with that.

"And what's the complaint--the auditees are being treated differently from whom? Those who weren't audited? But assuming that the IRS follows its (as opposed to Ron Paul's) policies, no one is being deprived of equal protection--it's just a wholesale violation of the law."

There's no EPC claim if the government is lawless in every case, but there is one if the government is lawless in every other case? If it's not an EPC claim, would you at least agree that it's some type of federal violation? You can't mean to stay that it's perfectly constitutional for a state government to violate the law as long as they do it consistently.

"My hypo is actually dead on, other than the fact that an execution is different from $50 in that the left-handed person is getting a benefit. I deliberately chose that because of the similarity to the situation with the doctor that you said was a problem. (I note your lack of response to that.)"

Your hypo is not even close. Having a doctor around to help the government kill you is a benefit? That isn't exactly what doctors are trained to do (it's the exact opposite, actually).

"State has administrative procedures for the hiring of police officers, but Officer Friendly is hired with minor deviations from said procedures. Can those arrested by Officer Friendly make out a valid EPC claim because they were arrested by a person who wasn't hired in accordance with state administrative procedures? Is there any federal claim here?"

That one is so far off the mark that it makes your last one look almost reasonable by comparison, but we can fix it-

State adopts a mandatory procedural protocol that must be followed when every arrest is made. Officer Friendly and every other state law enforcement officer deliberately violates it in every case. No federal claim?

Posted by: anon | Feb 10, 2012 8:28:48 PM

"If it's not an EPC claim, would you at least agree that it's some type of federal violation? You can't mean to stay that it's perfectly constitutional for a state government to violate the law as long as they do it consistently."

The Constitution is not necessarily offended by a violation of state law. I thought that was elementary.

As for the doctor--you seem to posit the wrong comparison--the issue is not having the doctor around to kill you--the killing is a given. It's the choice between being killed with a doctor helping to ensure that it isn't botched and the doctor not being there at all.

And I don't see how my Officer Friendly hypo is off--we have the thing which the defendant doesn't like, i.e., the arrest (which is analogous to the insertion of needle and the pumping of drugs) and the state mandated procedures which get Officer Friendly in a place to make the arrest (analogous to the LI procedures). If the arrest is ok under federal law (analogous to Baze not being violated), then there's no claim based on the hiring procedures--well, under federal law anyway.

On your revised Officer Friendly hypo: see Virginia v. Moore, 553 U.S. 164 (2008).

Posted by: federalist | Feb 10, 2012 8:44:52 PM

Va. v. Moore is a completely different issue. I'm going out for drinks. I suggest you do the same. I'll deal with you later if I'm still coherent.

Posted by: anon | Feb 10, 2012 8:59:36 PM

Completely different issue? Hmmmm. I'd say it gets a cf. And I suspect you're somewhat impressed. Not bad for a bloodthirsty trogolodyte.

Posted by: federalist | Feb 10, 2012 9:53:27 PM

"Come on Ohio PD--you want some of this?"

Well, considering I just read it for the first time (on my first day off in 2 weeks), I haven't missed much. You gave up on the last thread about this, seeing as how your critique of Frost's EPC is virtually the same critique that's been made of Bush v. Gore's EPC analysis. But as Bill Otis put it in another thread, the reason that that this is happening is because Frost's "got his back up," and the reason why that happened is because 1) Ohio can't do what it said it was going to do, and 2) lied and dissembled about it. I really don't see what is so difficult to understand about any of that.

Does your argument really boil down to a lack of citation to what was said the previous lawsuits? And
can you really attribute the AG's inability to win on this and failure to push this farther in the 6th and in Frost's courtroom itself to "don't piss off the judge?" It should be obvious to even you that Frost is ALREADY pissed off!

I just don't get why you want to argue what you think are the finer points of EPC analysis--which you're not even getting 100% correct, BTW--on this case. If it's so obvious you're right, then Ohio should have won in the 6th and at SCOTUS. No sale.

Posted by: Ohio PD | Feb 11, 2012 9:14:47 AM

I mean, you've made this awfully personal. Did Frost refuse to interview you or something?

Posted by: Ohio PD | Feb 11, 2012 9:15:55 AM

First of all, if I "gave up" on something, I wasn't intentional. Second, I've made this personal? I believe you have done so with the all he does crack.

As for Frost, nope, didn't interview with him, wouldn't want to. He's everything I loathe in a judge--imperious, full of himself and a half-wit.

The fact remains that even if Frost is irked with the state, there is the law, and Frost's opinions have little to do with the law. As for my EPC analysis, I don't see how it's wrong at all. And I note that you can't defend Frost. If there were anything that should be de minimis non curat lex, it would be the wrong official certifying death. And Frost's complaint about a doctor being part of an execution but not part of the protocol is so ridiculous as to not merit comment.

As for stays, they happen--even the Supreme Court has violated its own pronouncements with respect to stays of executions. SCOTUS has the power to do that, of course, although, if I were a state AG, I would insist on proper service before I stopped an execution, and I certainly would advise the governor that if there is no stay in place, there would be an execution (i.e., this waiting for the courts nonsense would end).

Apparently, Frost is ticked because the state made representations that turned out not to have been true with respect to future actions. Oh well. Since there's no coercive "thou shalt follow your protocol," then I guess he has a right to be mad, but that's about it. The EPC doesn't give this half-wit the right to police Ohio's protocol for violations of state law. And, of course, there is the question of harm--so what if there are trivial deviations? If they don't increase the risk of severe pain, where's the harm?

And I am shocked, Ohio PD, that you're onboard with Frost going off half-cocked on the nurse and members of the state execution team. I suspect he's right about the doc, not sure about the nurse. But that's not the point. The case for untruth should be spelled out in great detail.

As for DeWine, he's a wuss. He should be publicly criticizing this judge, and if the victims' families want to join in, he should help them get a voice.

Posted by: federalist | Feb 11, 2012 10:16:24 AM

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