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April 21, 2009

Huge opinion concluding(?) Ohio lethal injection litigation

A helpful readers sent me a copy of the latest federal district court ruling in Ohio's lethal injection litigation.  The ruling in Cooey v. Strickland is 159 pages(!) and it starts and ends this way:

This matter is before the Court upon remand for consideration of whether the Court should continue a previously granted stay of execution to intervening plaintiff Kenneth Biros in light of Baze v. Rees, 128 S. Ct. 1520 (2008).  For the reasons that follow, this Court finds that Biros is not entitled to a continued stay and VACATES the stay of execution prohibiting the State of Ohio and any person acting on its behalf from implementing an order for the execution of Kenneth Biros....

This is not to say that Biros or any of the various plaintiffs involved in this litigation are incapable of ultimately prevailing in this litigation. Ohio’s method of execution by lethal injection is a system replete with inherent flaws that raise profound concerns and present unnecessary risks, even if it appears unlikely that Biros will demonstrate that those risks rise to the level of violating the United States Constitution.  Thus, although the fact that the evidence at this stage of the litigation does not present a likelihood of Biros prevailing on his claim of a constitutional violation proves dispositive of his request for a continued stay of execution, it does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio’s policies and practices rise to the level of constitutional error.

Today’s decision therefore neither holds that Ohio’s method of execution by lethal injection is constitutional nor unconstitutional. Rather, today’s decision reflects only that at this juncture, Biros has not met his burden of persuading this Court that he is substantially likely to prove unconstitutionality. It would wholly confound this Court and no doubt many if not most of the people of the State of Ohio, however, if Defendants regarded today’s interlocutory decision as a wholesale endorsement of Ohio’s protocol, practices, and policies, both written and unwritten, and then did nothing to improve them.  Such a misconstrued legal victory for Defendants would be Pyrrhic given that Defendants are charged with carrying out humane and constitutional executions and not with simply prevailing in litigation.

Director Collins appears to recognize as much, given that he testified that the ultimate goal is for Ohio to be as humane as possible and as professional as possible in carrying out its lawful executions.  These are indisputably correct goals.  But Collins also testified that he believes Ohio’s procedures are as humane and the best they can be right now, and he is incorrect.  Thus, despite Defendants’ victory on the narrow issue of injunctive relief today, the aspirations of the State would suggest that the question should not be simply what must be done under compulsion by the Constitution, but also what should be done to meet the professed laudable goals of the State of Ohio.

Download Cooey v. Strickland opinion

April 21, 2009 at 09:33 PM | Permalink


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Given that this opinion lifts a stay of execution how is the comdemd supposed to proceed to yet more action?

Is he supposed to file yet more speculative motions based on supposed departures from an adequate protocol?

I also found the attack on team member 18 somewhat disturbing. I don't see an argument that a prisoner can't be executed because there is no one qualified to perform the act succeeding any time soon.

Posted by: Soronel Haetir | Apr 22, 2009 2:13:26 AM

turgid doesnt even begin to describe this oeuvre . . . . and can Judge Frost torture prose any more?

Posted by: federalist | Apr 22, 2009 9:49:06 AM

When I got to this sentence, I smiled: "The . . . question is thus what, if anything, Baze ultimately means."

Posted by: Anon | Apr 22, 2009 10:11:51 AM

"The . . . question is thus what, if anything, Baze ultimately means."

Well, learned judge, Baze certainly means something. It's a Supreme Court decision for pete's sake. Frost is a hack. That opinion is 159 pages of awful prose and whining.

Posted by: federalist | Apr 23, 2009 1:53:10 PM

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