Details on the botched Ohio execution attempt, issue spotting, and seeking predictions

This story from the Cleveland Plain-Dealer has more details on Ohio's botched effort to execute Romell Broom yesterday and some reactions to it:

For more than two hours, the team attempted to insert two shunts into a vein of the compliant Broom, who tried several times to assist his executioners by shifting positions, rubbing his arm and pointing out possible usable veins. The delay will likely add to the debate about the death penalty in Ohio and what constitutes cruel and usual punishment.

"The sentence is death, not torture plus death," said Kathleen Soltis, chairwoman of the Cleveland Coalition Against the Death Penalty. "What does reprieve mean in this case? This is getting crazier than usual."

At one point, Broom, 53, lay back on his bed, covered his face with his hands, and cried. Another time, while sitting up, he was seen grimacing as the execution team appeared to seek a vein around his ankles.

A reprieve at this stage of an execution has never happened since the death penalty was reinstated in 1999, said Terry Collins, director of the Ohio Department of Rehabilitation and Correction.  He said he called the governor and asked for the reprieve after it became clear the execution team was having trouble. "I could tell my team was becoming somewhat frustrated," Collins said.  The reprieve extends only until Sept. 22.

The drama played out before the family of Tryna Middleton, the 14-year-old girl Broom was convicted of kidnapping, raping and killing 25 years ago.  Tryna's mother and father, Bessye and David Middleton, were there to witness the execution, as was an aunt.  They sat in front of a glass window through which they were expecting to see Broom die.

Instead, he never made it out of his nearby cell, where two shunts were to be installed in veins.  The shunts allow three drugs to enter the veins and sedate, paralyze and kill the inmate.  The family and others watched the preparation on closed-circuit monitors mounted in the witness area.  A camera filmed Broom and captured much of the difficulty the execution team had, as well as Broom's frustration.  Broom requested no witnesses initially, but about an hour into the process asked for his attorney, Adele Shank, to be present.

A visibly upset Shank appeared in the witness room not knowing of Broom's request but out of concern for the length of time for the execution. "The chief justice and the governor have been notified of what's going on," Shank said after the execution team spent 90 minutes trying to insert the shunts.

Collins said the execution team was able to access several veins but they collapsed once saline solution was administered. He defended the execution team and said: "They continued to do a job that most wouldn't do or couldn't do."...

Shank, Broom's lawyer, said she is considering additional appeals.  "We don't want to see a repeat of this ever," she said.

I suspect that Broom's lawyer (whom I happen to know and respect greatly) will have little trouble developing a federal Eighth Amendment claim based on what's happened to her client so far.  But I am wondering about other possible legal issues that might be raised in this setting. 

Most obviously, Broom could make a state claim based in the Ohio Constitution's prohibition on cruel and unusual punishment.  State provisions similar to the Eighth Amendment are often, but not always, interpreted in harmony with federal jurisprudence.  Notably, the Ohio Constitution's Bill of Rights also has provisions securing Inalienable Rights and Redress in Court, which perhaps are other avenues Broom's lawyers might exploring in state court.

Moving beyond Broom, I am wondering if other defendants on death row in Ohio (or in other states that rely on lethal injection) might now have a due process right to access to any preserved video that apparently "captured much of the difficulty the execution team had, as well as Broom's frustration."  I think that video would be relevant and important evidence for making constitutional claims surrounding lethal injection protocols in Ohio and perhaps in other states. 

In the same spirit, might lawyers involve in other lethal injection litigation now seek to take Romell Broom's deposition?  It seems that what Broom was experiencing physically (and perhaps also psychologically) would be relevant to claims surrounding lethal injection protocols.  Could a federal court involved in some other lethal injection litigation order a stay of Broom's new September 22 execution date in order to preserve him as a possible witness in another proceeding?

And let's throw in a little First Amendment fun: does the media (and/or an interested and responsible blogger) have a right to access any preserved video that apparently "captured much of the difficulty the execution team had, as well as Broom's frustration"?  Does the media have a right to access Broom himself to interview him about his experiences yesterday?

I could go on and on, but you all get the point of how much this real case now seems like a law school exam hypothetical.  And, of course, what ultimately happens to Broom and broader debates over lethal injection in Ohio or elsewhere is much more important than being able to spot all the issues.  Thus, I am interested in hearing predictions from any and everyone about what they expect to have happen next.

Related posts on botched Broom execution:

• Ohio struggling, legally and practically, with effort to execute offender
• More on Ohio's execution troubles and what could happen next

Some related posts on litigation in Ohio and elsewhere over lethal injection:

• Sixth Circuit splitting over challenges to Ohio's execution protocol
• "Sotomayor on losing end in Ohio man's death appeal"
• Split Sixth Circuit panel upholds Tennessee's lethal injection procedures
• Legal challenge to Washington's lethal injection methods turned away
• Notable new paper on doctor involvement in executions

UPDATE:  This article from CBS News highlights that the aboitionist community is already calling for a moratorium on all executions in Ohio:

The problems prompted the American Civil Liberties Union of Ohio to ask state officials to immediately halt executions.  "Ohio's execution system is fundamentally flawed.  If the state is going to take a person's life, they must ensure that it is done as humanely as possible," ACLU Ohio counsel Carrie Davis said.  "With three botched executions in as many years, it's clear that the state must stop and review the system entirely before another person is put to death."