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May 8, 2008

How might state-law-based challenges to lethal injection fare after Baze?

One of many interesting aspects of all the lethal injection litigation over the last few years has been the tendency of some state courts to take up challenges to modern execution protocols based primarily on state statutory or constitutional law.  It is hard to predict how state-law-based challenges may fare in the wake of last month's Supreme Court decision in Baze finding no federal constitutional problems with Kentucky's lethal injection protocol.

Interestingly, as detailed in this media round-up at the blog StandDown Texas Project, a state court hearing about the Ohio's lethal injection protocol this week produced some notable fireworks.  Here is an excerpt from this AP report on the Ohio court hearing:

A prosecutor accused a judge Tuesday of making arguments on behalf of two men challenging the state's method of executing prisoners.

Ruben Rivera and Ronald McCloud, who are accused of separate murders and could receive death sentences if convicted, are disputing the state's lethal injection process, saying it doesn't provide the quick and painless death required by Ohio law. Lorain County Common Pleas Judge James Burge, who intends to make a ruling before July, held a hearing Tuesday to discuss testimony from two anesthesiologists who took the stand last month.

When Burge began questioning language in Ohio's lethal injection statute, assistant county prosecutor Tony Cillo bristled, saying the judge was helping the American Civil Liberties Union make its case. "The court is now making arguments for the plaintiff and that is not the court's role," said Cillo, complaining that he could not prepare for arguments that the ACLU had not raised. "You're supposed to know all of them," Burge said.

The disagreement started over a highly technical question. Burge raised the issue of whether the words "quickly and painlessly cause death" in the statue should be applied not only to the dosage of the lethal injection drugs, but to how they are administered.  In an earlier hearing, Cillo questioned whether Burge already had formed an opinion on the death penalty, noting that the ex-defense attorney has a photo of former client James Filiaggi in his office. Filiaggi was executed last year.  "The court's role is to presume it's constitutional," Cillo said Tuesday. "I do," Burge said. Burge then held a long recess.

Some related post-Baze posts:

May 8, 2008 at 07:06 AM | Permalink


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I'd say that in Ohio the state law challenge should go well for the Ohio lethal injection method. After all, this judge Burge has a big picture of Che Guevara in his office, and Che was, shall we say, less than squeamish about executing people for things like speaking their minds or engaging in homosexual sex. And he didn't get all that worked up about methods of execution either.

Posted by: federalist | May 8, 2008 11:03:19 AM

To put it kindly, Burge is a twit. He has been reversed over and again by the appellate court for his county. He has accepted pleas to felonies and then sentenced on misdemeanors because he didn't like the facts at allocution. I would be floored if he didn't rule Ohio's method unconstitutional. If it goes that way, it'll get reversed on standing. The guys challenging the method here haven't even been convicted yet.

Posted by: NewFedClerk | May 8, 2008 12:57:41 PM

The fun thing about being a federalist: it allows one to be utterly dismissive of all law other than state law precisely because it isn't state law. and then when one disagrees with state court interpretation of state law one can be utterly dismissive of that too.

Posted by: | May 8, 2008 1:13:55 PM

Unnamed poster, lighten up. The comment was pure snark.

Posted by: federalist | May 8, 2008 1:37:44 PM

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