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June 14, 2017

Might judicial estoppel continue to preclude Ohio from moving forward with a three-drug lethal injection protocol?

As previously noted here, today is the day for the Sixth Circuit oral argument in its rehearing en banc of the State of Ohio's appeal of a lower court stay blocking Ohio from using its latest three-drug protocol to execute condemned murderers.  One basis for stay, as reported here, was the plan for Ohio to use midazolam as the first drug in its three-drug execution protocol.  But some recent uneventful executions by other states using midazolam may serve to make this foundation for the stay weaker than it was earlier this year.  So another issue sure to come up in this argument is the capital defendants' claim, also adopted in the initial stay order, that Ohio is judicially estopped from using a three-drug execution protocol after having years ago forsworn such a plan in favor of one-drug execution plans.

In this recent post at the ACS blog, titled "Ohio’s Lethal Flip Flop: Court Should Hold State To Consistent Legal Position on How To Execute," Virginia Sloan makes the case for the judicial estoppel arguments to block Ohio's execution plans.  Here are excerpts:

Outside of the legal profession, judicial estoppel, or the doctrine that prevents a party to a lawsuit from taking inconsistent positions about the same issue at different phases of the legal proceeding, is not particularly well-known. However, it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants. Non-attorneys unfamiliar with the legal doctrine of judicial estoppel need look no further than pending lethal injection litigation in Ohio to understand its crucial importance in our system.

In a remarkable series of losses and appeals, Ohio state officials are currently attempting to convince yet another federal court to allow them to use a lethal injection protocol which is in direct violation of representations state officials made eight years ago in order to prevail at an earlier phase of the ongoing litigation....

After [a] failed execution, and facing an imminent trial in July 2010 on the prisoners’ challenges to Ohio’s three-drug lethal injection method, Ohio announced in November 2009 that it would never again use the paralytic drug pancuronium bromide and potassium chloride in executions. State officials represented they would use a one-drug, barbiturate-only method instead. The same day Ohio announced this change, it filed a motion for summary judgment in the pending litigation, asking the federal court to dismiss all challenges to the three-drug protocol because, as the State argued, the change in execution drugs meant the claims about the two painful drugs were “moot.” The State’s filing unequivocally declared “there is no possibility here that the allegedly unconstitutional conduct will reoccur.” The federal courts accepted Ohio’s argument, and its representations, with the Sixth Circuit explicitly holding that “any challenge to Ohio’s three-drug execution protocol is now moot.” With the prisoners’ constitutional claims thus mooted in this way, the State proceeded to carry out 20 executions over the next eight years, including that of Mr. Biros in December 2009.

Fast forward to October 2016: Ohio reneged on its promises. State officials announced that their “new,” three-drug protocol will again include a paralytic and potassium chloride. Unsurprisingly, the courts did not look favorably upon Ohio’s flip-flopping. In his order, following a five-day evidentiary hearing in 2017, U.S. Magistrate Judge Michael R. Merz wrote that “the position the State of Ohio now takes — that it will execute [prisoners] using a paralytic agent and potassium chloride — is completely inconsistent with the position it took on appeal in Cooey (Biros) and on remand from that decision before Judge Frost. Ohio prevailed on its contrary position and is now judicially estopped from re-adopting a paralytic agent and potassium chloride as part of the Execution Protocol.”  On April 5, 2017, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit agreed, upholding the preliminary injunction.

The State petitioned for the full court to hear the case, and in coming weeks, Ohio will try for the third time to explain why it is acceptable to render litigation moot by making one representation, and then later in that same litigation to propagate actions in contravention of that representation.

Judicial estoppel prevents parties from manipulating legal proceedings, requiring parties to maintain consistency within the course of litigation. The changing of positions based on convenience or “exigencies of the moment” is not authorized by law, and is particularly reprehensible when the issue at hand is one of life or death. Ohio apparently needs a third ruling to remind officials that what they promised the federal courts in 2009 still binds them in 2017. The law demands that the State devise an execution protocol consistent with its word.

Even without hearing the outcome of today's oral argument, I am predicting that this judicial estoppel claim does not end up carrying the day with the full en banc Sixth Circuit.  Ohio officials are claiming that they have returned to a three-drug execution protocol because of a state legal obligation to carry out lawful death sentences AND a constitutional obligation to carry out executions in the least painful way possible. If Ohio officials reasonably and accurately assert they had to return to a three-drug protocol to comply with these obligations, I doubt the full Sixth Circuit will conclude a prior litigation position must now thwart these efforts.  

June 14, 2017 at 10:26 AM | Permalink


Judicial estoppel against the state? Seriously?

Posted by: federalist | Jun 14, 2017 10:36:12 AM

I find "assert" ... pet peeve ... annoying.

The word to me suggests a bald claim. I figure Ohio is "arguing" something, with basis etc.

Posted by: Joe | Jun 14, 2017 10:54:45 AM

"The State petitioned for the full court to hear the case, and in coming weeks, Ohio will try for the third time to explain why it is acceptable to render litigation moot by making one representation, and then later in that same litigation to propagate actions in contravention of that representation."

Talk about a contentious description (go figure, ACS Blog). The claims of the condemned were mooted by the fact that Ohio wasn't planning on going back to the 3-drug protocol. They weren't subject to it, and were never going to be subject to it--so, the federal courts were deprived of jurisdiction to hear the claims. That doesn't (or shouldn't, you never know with 'rat judges) bind Ohio forever.

Posted by: federalist | Jun 14, 2017 11:07:34 AM

The executive has full veto power over judicial decisions, because executive employees enforce them. Executive "discretion" may be exercised, and should be. First, ignore orders, fire any agenttrying to enforce any. Then, stop the paychecks to the judges. Let them try to collect their pay. Why the executive is so self defeating has to be explained to me.

Posted by: David Behar | Jun 14, 2017 3:01:01 PM

At the end of the you need to look at the number of Democratic appointees and the number of Republican appointees on the en banc court. All the Repubilcans will side with the State and all the Democrats will side with the Plaintiffs. That is because death penalty has everything to do with politics and little to do with what the law may require

Posted by: ? | Jun 14, 2017 7:12:03 PM

The differences between the judges are often not that notable but when there is a split, it is often ideological in such a way that overlaps with party. There was recently a comment on Religion Clause blog that party can be seen among religious faiths too.

It is not as much that there is "little" to do with what the law requires as that on controversial issues there being a deep split over what exactly that is. Thus, justices nominated by Washington/John Adams made different judgments than those nominated by Jackson and so forth.

Posted by: Joe | Jun 15, 2017 10:01:06 AM

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