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July 2, 2007

A family's civil suit following a botched Ohio execution

Perhaps the most interesting of various new items at the Ohio Death Penalty Information blog is news of Ohio's troubled execution of Joseph Clark last year now resulting in a federal civil lawsuit.  Here are some of the particulars from this post:

Irma Clark, the mother of Joseph Clark — whose botched May 2, 2006 execution by the State of Ohio took nearly 90 minutes — has filed a civil lawsuit against Ohio prison officials and execution team members in the US District Court for the Southern District of Ohio seeking compensatory damages and a jury trial.  (Case is No. 07-0500.  Suit was filed today and assigned to Judge Michael Barrett.)

The relatively short complaint can be accessed here, and ODPI has links to some early press coverage.

July 2, 2007 at 05:54 PM | Permalink


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Tracked on Jul 12, 2007 8:43:53 AM


What a joke.

Posted by: federalist | Jul 2, 2007 5:59:43 PM

In the event that any damages are payable for pain suffered by Joseph Clark, the family of David Manning should have a lien on that award for the pain suffered by him.

Posted by: Kent Scheidegger | Jul 2, 2007 6:53:13 PM

Is there immunity for the state employees?

Posted by: | Jul 2, 2007 9:30:27 PM

As I understand it, this is under § 1983, so, at best, there would be qualified immunity.

Mr. Scheidegger does have a point – and a good one – that the “victim” (as the kids like to call it) now has interests that are completely aligned with that of the family that the state killed. So, every dollar that comes from the state, goes to the victims. Therefore, it seems that Federalist has no respect for the victims of crime.

Posted by: S.cotus | Jul 3, 2007 8:24:42 AM

Might this just be a veiled attempt to "unmask" the executioner -- perhaps driven by our good friends who would like to abolish the death penalty? Seriously -- his execution lasted so long because they couldn't find a vein because of his extensive drug use -- there's absolutely no evidence that the cocktail was improperly given or that it didn't work in the time period it was to supposed to work.

Posted by: JustClerk | Jul 3, 2007 8:43:33 AM

There is nothing “veiled” about it, nor is there anything improper about wanting to do so. Knowing the identities of people that kill for the state in controlled environments seems pretty important. I can’t even think of a law-enforcement interest to be preserved here.

So what if it is an attempt to unmask the executioner. If this survives a motion to dismiss, then they are entitled to the identity of the state-hired killer on discovery. (I can’t think of any privilege.)

Whether there is evidence that the state’s behavior in killing him ran afoul of the “reckless disregard” or “deliberate indifference” standards under the 8th amendment is a matter of proof, which can be resolved via summary judgment and trial. If you were a clerk, then you would be withholding judgment until such time on the “evidence” issue. (It is unclear whether you even read the complaint. If you did not, then you are not lawyer material, so I will assume that, in fact, you did.)

Anyway, for the lawyers out there, here is the complaint:

Although a good person would read the whole complaint before commenting, pp. 7-8, specify their theory:

1) The execution violated state law and the 8th amendment;
2) The defendants were deliberately indifference to the substantial risk of a problematic execution, and the humiliation, pain, and such serves no valid penological purpose.

Posted by: S.cotus | Jul 3, 2007 9:11:56 AM

Actually, if the sole goal is to unmask the executioners, and the claim has no factual foundation, it's an abuse of process and completely illegitimate. If you read the complaint, it alleges all that it can -- that the execution in its entirety took longer than was scheduled and than it took nineteen pricks to find a viable vein. I reckon that if you accept all of those factual allegations as true and ignore the legal conclusions posed as factual allegations, there is no way this thing survives a motion to dismiss.

This doesn't even mention the fact that the complaint has allegations which the attorney and parties cannot possibly have a good faith reason for alleging. At this point, the plaintiff admittedly does not even know the identity of the execution team, yet is alleging that they had improper and insufficient training.

And S.cotus -- when rejecting a complaint because it has no valid legal or factual basis, there's no need to wait for the evidence. You don't get to file complaints that serve as nothing but fishing expeditions, they have to contain factual allegations, that if proven, would support your claim.

Posted by: JustClerk | Jul 3, 2007 11:29:05 AM


isn't executing someone a core function of the state? Surely, when section 1983 was passed, no one thought that executioners could be sued for carrying out their duty.

This suit is repulsive. The mother of the executed man is an evil woman with no shame.

Posted by: federalist | Jul 3, 2007 11:47:26 AM

I can't agree with that analysis - policing our streets is a core function of the government as well -- it doesn't mean that there's no 1983 action when officers use excessive force. The underlying basis for the suit is that the "core function" was carried out in a way that violates the Constitution. That's the very essence of 1983 action (you remember, deprived of a Constitutional right under the color of state law). As such, in principle, I have no objection to this type of suit. My problem with this complaint is that its lacking any verifiable facts to supports its legal conclusion.

Posted by: JustClerk | Jul 3, 2007 12:01:41 PM

JustClerk, You said, “My problem with this complaint is that its lacking any verifiable facts to supports its legal conclusion.” I don’t want to break it to you, but unless there is a “pleading with particularity” standard in place, you don’t need verifiable complaints to get pasted a motion to dismiss. I fail to see how this complaint doesn’t state factual allegations. It asserts that the jail was indifferent (within the meaning of the 8th amendment) and acted inhumanely (within the meaning of the Ohio Statute). Specifically, it alleges that: 1) in light of his condition they didn’t have enough killing juice on hand – and they knew this would prolong the procedure; 2) they did not perform even a cursory medical exam; 3) they had no training to manage a problematic execution.

What you are proposing, it seems, is a blanket immunity for all state-approved killings of people, therefore taking them completely out of not only the US Constitution, but also the specific state statutes which govern how the state gets to kill people.

Suits are frequently filed against Jon Doe defendants. In this case, there is at least one named defendant with access to those names. Those defendants are state employees and are likely subject to the jurisdiction of the state. Therefore, their identity could be discovered. If it isn’t discovered, because a co-defendant refuses to reveal their names, each individual defendant might be jointly and severally liable. Granted, simply learning their names isn’t a proper use for (most) 1983 suits, but here the plaintiff seeks compensation, for the dead guy’s injuries, so he is seeking a little more than his name.

Now, I am not opining as to the merits. Moreover, I am not even sure whether the unnamed killing-people would be entitled to qualified immunity.

Federalist, You should probably explain how the mother of a dead person is “evil” because she seeks compensation from those that killed and arguably subjected him to torture. Whatever the case, there are lots of legal things that are repulsive. But, that does not mean that they are dismissed from the courts. Instead, courts generally perform some kind of magical legal analysis.

Posted by: S.cotus | Jul 3, 2007 12:49:49 PM

qualified immunity

Posted by: federalist | Jul 3, 2007 1:42:17 PM

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