« State AGs and the Second Amendment incorporation debate | Main | Pastor and city leaders fighting over sex offender working at church in California »

September 22, 2009

Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months

This local AP story, which is headlined "Second attempt to execute Ohio killer further delayed," documents why the state of Ohio is very unlikely to get another chance to execute Romell Broom anytime soon.  Here are the basics from the AP story:

A federal judge on Tuesday further delayed an unprecedented second attempt to put a condemned rapist and killer to death by lethal injection. U.S. District Court Judge Gregory Frost's order, which pushes a hearing on the fate of inmate Romell Broom from next week to Nov. 30, was unopposed by the state.  It gives the state and Broom's attorneys time to gather more information to argue over trying to execute Broom again for the 1984 rape and murder of a teenage girl he abducted at knifepoint in Cleveland.

Because this initial federal court hearing won't take place until late November (and especially given the state seems in no hurry now to try again to execute Broom), it is quite unlikely that the district court will even issue a ruling before next year and the inevitable appeal to the Sixth Circuit and the Supreme Court could easily extend the Broom case deep into 2010 and beyond.

The really interesting and uncertain question going forward concerns what will happen in other scheduled Ohio executions in the weeks and months ahead.  I believe there are three more executions scheduled in Ohio before the end of 2009.  Especially now that the litigation over Broom's status has been put on a slower track, the hottest lethal injection fights are now likely to focus on the defendants who are scheduled to be executed in October and November.

Related posts on botched Broom execution attempt:

UPDATE:  I noticed here these three telling comments, which were the first responses to this story on Columbus Dispatch website:

Comment 1: November 30th?  Great ruin this poor victim's families holiday season.  One I might add that she hasn't been able to enjoy since 1984.  This scum needed to die way before now.  He has had too many years on this planet.

Comment 2: I find this situation unbelievable, An I/O (interosseous) device is painless, quick and simple to use.  Used everyday in prehospital and clinical settings with great success.  Designed to use when an IV placement is difficult.  Delaying this execution is cruel and unusual punishment for the convict and more so, for the family.

Comment 3: This is astounding!  Put his rear in the chair or line him up on a wall and have target practice with him!!!  What he is 'going through' is nothing compared to the cruel and unusual punishment he put an innocent little girl through!  Heck, if I had access to him, I'd do it myself!!

September 22, 2009 at 07:09 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months:

» Blog Scan from Crime and Consequences Blog
SCOTUS Petitions to Watch: SCOTUSblog writer Kristina Moore provides a list of "Petitions to Watch" when the Supreme Court meets for its September 29th "long conference." Moore's post gives details on four criminal cases before the Court, including Hol... [Read More]

Tracked on Sep 23, 2009 5:17:02 PM


The state really screwed the pooch. It should have vigorously opposed any stays.

Frost would have done it anyway, but make that nitwit put his reasons in writing.

Posted by: federalist | Sep 22, 2009 9:11:14 PM

"It should have vigorously opposed any stays."

Why, so they could torture a man without any judicial oversight?

Posted by: JC | Sep 22, 2009 9:22:04 PM


Be careful about calling judges names. Your State seems to like to go after the bar cards of those who criticize judges.

Posted by: .. | Sep 22, 2009 9:28:53 PM

JC --

Why is this case not controlled by Francis v. Resweber, 329 U.S. 459 (1947)?

Posted by: Bill Otis | Sep 22, 2009 9:52:05 PM

Bill: Resweber would seem to control, but as you know, this is an area of the law where evolving social norms matter a lot and are incorporated into the constitutional analysis. Plus, there's been a boatload of intervening case law that suggests a contemporary analysis might turn out different.

Posted by: dm | Sep 22, 2009 10:41:39 PM

".." writes:

"Sean: Be careful about calling judges names. Your State seems to like to go after the bar cards of those who criticize judges."

Anonymity is an essential component of the free exchange of ideas in the online context. The information contained in your post (along with other information which is freely available online) could easily lead one to deduce the actual identity of Federalist. That is not right. You should not seek to disclose the identity of someone who wishes to post anonymously.

Posted by: JC | Sep 22, 2009 10:48:15 PM

"JC --Why is this case not controlled by Francis v. Resweber, 329 U.S. 459 (1947)?

In the interests of full and fair disclosure, let me make a few things clear at the outset:

First: I am an abolitionist. I am opposed to the death penalty in all circumstances. I do not care whether it is Troy Davis or Osama Bin Laden. Our society should not lower itself to such a deplorable level where the ritualized, state-sanctioned extermination of human life is permissible. I readily recognize that the death penalty was a necessary component of the criminal justice system in past centuries. So far as I am concerned, however, it has no legitimate place in contemporary society. Here in the 21st Century, a sentence of life without the possibility of parole is justice; putting someone to death, however, is nothing more than vengeance, plain and simple.

Second: I am not an Originalist. Do not get me wrong, I firmly believe that the original intent of the Framers is a very relevant consideration in determining the correct interpretation of the Federal Constitution in our contemporary society. Furthermore, I certainly recognize that Originalism is an entirely valid and respectable method of Constitutional interpretation. Indeed, I think Judge McConnell on the Tenth Circuit may be the finest judicial officer in the entirety of the Federal Judiciary, and he is one of the most respected Originalists that you will ever find.

Nevertheless, I do not believe that the original understanding of the Framers should be dispositive when questions arising under the Federal Constitution are entertained. I find it doubtful that the Framers intended to freeze their notions of "due process," "unreasonable searches and seizures," "cruel and unusual punishment" and the like in such terms as were prevailing in the late Eighteenth Century. Indeed, the Federal Constitution was adopted against the backdrop of the better part of a millennium of evolving common law. In such circumstances, I think that adhering to strict Originalism is a disservice to the brilliance of the Constitution itself.

Now, to the question at hand.

I am of the opinion that Francis was wrongly decided and should be overruled. I wholeheartedly agree with the dissent authored by Justice Burton, finding that:

"Lack of intent that the first application be less than fatal is not material. The intent of the executioner cannot lessen the torture or excuse the result." Francis, 329 U.S. at 477 (Burton, J., dissenting)

Moreover, in such circumstances as are attendant to a failed execution, the subsequent imposition of the penalty of death "...exceeds any punishment prescribed by law. There is no precedent for it. What then is it, if it be not cruel, unusual and unlawful?" Francis, 329 U.S. at 479 (Burton, J., dissenting).

Putting a man to death is barbaric enough, but doing so after one execution has already failed simply exceeds all bounds of contemporary human decency. The horror and humiliation of being escorted to the death chamber and prepared for execution is an experience which no one should have to endure more than once, irrespective of what they have done. Our society is better than that. We should not lower ourselves to such deplorable and utterly inhumane behavior.

Posted by: JC | Sep 23, 2009 12:31:00 AM

JC, I am in significant agreement with you. You perfectly explain why I am against the death penalty (in all cases), why originalism has some validity and is important but should not be controlling, and the high-esteen I hold former-Judge McConnell (the federal judiciary lost a great judge when he resigned).

Regarding Francis, however, I tend to agree with both Mr. Ottis and dm. Francis' holding is controlling on the lower courts, but it is also understandable for a lower court is to question its continuing validity in light of subsequent 8th Amendment jurisprudence. Ultimately, I think a lower court acts properly by applying Francis' holding, leaving it to the Supreme Court to clarify if and how its subsequent precedent alters the earlier case's holding.

Posted by: DEJ | Sep 23, 2009 2:41:26 AM

"...the high-esteen I hold former-Judge McConnell (the federal judiciary lost a great judge when he resigned)."

Good Lord! I was completely unaware that he had elected to resign. I am very sorry to hear that, he was a truly excellent jurist.

Posted by: JC | Sep 23, 2009 3:00:44 AM

There are several flaws in the notion that Resweber should not or would not be followed today.

First, the whole notion that contemporary opinion should dictate Eighth Amendment outcomes is very dubious (though widely accepted). Contemporary opinion properly controls outcomes in the POLITICAL branches, but says nothing about the meaning of the Constitution's text. Indeed, if the courts do not exist to uphold the law NO MATTER WHAT public opinion may be, what entitles them to any special status or respect?

Second, even if otherwise, the key aspect of contemporary opinion supports, rather than undermines, Resweber. Resweber's view that the INTENT to cause pain, rather than the pain itself, is the guiding principle was endorsed (indeed virtually repeated) in the very recent Baze holding. It is hardly an anachronism.

Third, the argument that contemporary norms would reject a second attempt to execute this defendant proceeds by ipse dixit rather than evidence. Where is the evidence that the public holds any such opinion?

Fourth, what of the rule of precedent? Supreme Court nominees are routinely asked, for example, whether they would overturn the precedent of Roe v. Wade, the implication being that to do so would violate what has now been established law for over 30 years. But if 30 years of Roe is long enough to make it (for practical purposes) untouchable, why doesn't 60 years of Resweber have at least the same effect?

Those who believe that we have a "living Constitution" might respond that (1) attitudes toward Roe haven't changed, while (2) attitudes toward Resweber have. The problem, again, is that there is no actual evidence of public opinion to support either (1) or (2). If anything, public opinion is MORE conservative on both questions now than when these opinions were handed down.

As to abortion: In a recent Gallup survey, for the first time, more people described themselves as pro-life than pro-choice. And as to the death penalty, while there has been no polling known to me on the narrow (and, fortunately, rare) question whether a person can be executed after a first attempt has failed, support for the death penalty generally has been both high (about two-thirds) and stable for the last few years. Half or slightly more of the public believes that the DP is not imposed often enough. This attitude does not prove, but it suggests, that Resweber would command public support today.

Posted by: Bill Otis | Sep 23, 2009 4:15:06 AM


I have always found the the 8th to be a double edged sword. The word unusual to my mind represents just the politically normative claim you dislike. Cruel is perhaps more dubious. But I fail to see how the courts can interpret the constitution and interpret 'unusual' in a way that doesn't relate to contemporaneity practice. I will concede that just because trying to kill a man twice is unusual doesn't alone make it cruel. But trying to execute someone twice objectively satisfies one prong of the 8th; it is unusual. Whether it is also cruel is a question on which people obviously disagree.

"Indeed, if the courts do not exist to uphold the law NO MATTER WHAT public opinion may be, what entitles them to any special status or respect?"

Civic faith.

"But if 30 years of Roe is long enough to make it (for practical purposes) untouchable, why doesn't 60 years of Resweber have at least the same effect?"

Because the political and social consequences of overturning Roe are much more dramatic than overturning the other.

Finally, it is possible to be both pro-life and pro-choice. I consider myself to be just such a person.

Posted by: Daniel | Sep 23, 2009 12:38:37 PM

This failure to execute has an analogy in a Do Not Resuscitate order from an elderly patient. Physicians resuscitate and cause the patient to spend more time in a low quality life. The patient may sue for medical malpractice and unauthorized medical procedure without consent.

The quality of life on death row is fairly low. The survival of this condemned prisoner represents a detriment to the prisoner. The botching subjected him to more days of low quality of life, as an unauthorized resuscitation might.

The condemned may be owed money damages from 1) prison authorities for negligent, inadequate execution, negligent hiring, negligent trainin; 2) from defense attorneys for prolonging his life on death row, and the judges, to try to overturn SC decisions giving them absolute but totally unwarranted and crippling immunity.

Posted by: Supremacy Claus | Sep 23, 2009 1:05:43 PM

As to the quoted comments. In the real world, my views are ordinary, and the people here are sick criminal lover freaks. I still love everyone here. I would try to protect the people here from bullies who would want to kick your asses after hearing the appalling criminal lover views, in a bar conversation. "Hey, man. They are lawyers. Leave them alone. Their brains have changed. They can't help what they are saying."

Posted by: Supremacy Claus | Sep 23, 2009 1:13:43 PM

Wrong guy "."

Posted by: federalist | Sep 23, 2009 1:18:20 PM


For the record, I am pro-life. I believe that the Due Process Clause provides a personal right to privacy, and that this encompasses the right to sexual and reproductive freedom. I do not believe, however, that the right to privacy is so expansive as to guarantee a right to abortion on demand.

Posted by: JC | Sep 23, 2009 10:11:28 PM


I don't know how "telling" those comments are. I don't think newspaper comment sections are remotely representative of the average citizen's opinions. (If they are, god help us!)

Posted by: Observer | Sep 24, 2009 10:24:51 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB