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September 18, 2009

Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details)

This AP article provide the latest, but certainly not the last, update on the litigation surrounding Ohio's botched execution attempt this past Tuesday and its plans to try again this Tuesday.  Here are a few highlights:

An attorney for an Ohio inmate whose lethal injection failed this week asked the U.S. Supreme Court on Friday to halt an unprecedented second execution attempt, and cited in a separate affidavit the inmate's claims that executioners hit muscle and bone when they tried to find a vein suitable for injection.

Tim Sweeney, an attorney for Romell Broom, also filed lawsuits in federal district court and in the Ohio Supreme Court in Columbus on Friday arguing that a second execution attempt, scheduled for Tuesday, would violate Broom's civil rights. If unsuccessful in achieving clemency for Broom, Sweeney will argue that he shouldn't be executed until a new procedure can be put in place that ensures what happened on Tuesday won't be repeated. And trying again only a week later would be "unconscionable," Sweeney said....

In an affidavit from Broom that was to be submitted as evidence in the federal district court filing, Broom said officials first tried three separate times to access a suitable vein in the middle of both arms. He said nurses told him to take a break after those six attempts, after which the nurse tried twice to access veins in the left arm.

"She must have hit a muscle because the pain made me scream out loud," Broom said. "The male nurse attempted three times to access veins in my right arm. The first time the male nurse successfully accessed a vein in my right arm. He attempted to insert the IV, but he lost it and blood started to run down my right arm. The female nurse left the room. The correction officer asked her if she was OK. She responded, 'No' and walked out.

"The death squad lead made a statement to the effect that this was hard on everyone and suggested that they take another break."

Officials later moved to Broom's feet to find an accessible vein. "During this attempt, the needle hit my bone and was very painful. I screamed," Broom said in the affidavit....

On Friday, the American Civil Liberties Union of Ohio filed a public records request with the state in an attempt to learn information about the preparation for the first attempt, details about the attempt and information about preparations for the next scheduled attempt. The Ohio Association of Criminal Defense Lawyers sent Strickland a letter Thursday asking him to place a moratorium on Ohio executions given Tuesday's events.

A prisons spokeswoman said Thursday that officials at the Southern Ohio Corrections Facility where Broom is being kept in a cell in the infirmary in preparation for next week's attempt are monitoring how much he's drinking. Dehydration could make it more difficult to find veins, but the spokeswoman said there's no evidence that's what caused Tuesday's problems. In the affidavit, Broom said that on Monday, the day before the execution attempt, he drank seven cups of coffee, five cups of water and three cups of Kool-Aid.

Candidly, I will be a bit surprised if we make it though the weekend without some kind of stay ordered to prevent the state of Ohio from starting the execution process on Monday.  It is my understanding that an execution process gets started a day or so before the actual scheduled execution (including the ordering of a last meal and all), so I will be surprised if all state and federal courts wait until Monday to rule on a stay.  Though perhaps the state courts are hoping the federal courts will intervene first, and vice versa.  In short, as I like to say, stay tuned.

Related posts on botched Broom execution attempt:

UPDATE:  This new New York Times piece provides the latest news, including the details of a stay:

An Ohio prisoner whose execution was halted on Tuesday, and then immediately rescheduled for next week, because technicians were unable to inject him with lethal drugs won a stay of execution on Friday.

The stay, issued by Judge Gregory L. Frost of the Federal District Court in Columbus, expires at 11:59 p.m. on Sept. 28. A hearing on a further stay has been scheduled for that day.

September 18, 2009 at 03:28 PM | Permalink


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This is all abolitionist pretextual gotcha. The criminal dependent press, the criminal dependent lawyer profession are agitated, and running about because someone flubbed an IV. It is meaningless and trivial. Go to the left of the chest. Counting down from the top of the chest, go to the fifth space between the ribs, insert the needle into that space, point upward and inject into the heart. Use the other fingers to feel for a pulsating mass. Aim toward it.

Not one of these left wing ideologue has a word to say when these people are dispatched by an injection of potassium directly into the heart, 1000's of times a year, around the world.


No procedural due process for those people. No outrage. No noise. No ACLU. No governor. No appeals. No articles. No Supreme Court. Nothing.

Why? No lawyer fees.

Posted by: Supremacy Claus | Sep 18, 2009 4:31:57 PM

I'd be shocked too if this execution doesn't get postponed. But then again, last week I would have been shocked to discover that a state spent two hours trying unsuccessfully to kill someone.

Posted by: KCADP | Sep 18, 2009 4:51:05 PM

I am always shocked when people want to give 1000's of correctly convicted murderers absolute immunity for all future crimes, and a license to kill at will, freer and less accountable than that of James Bond.

Posted by: Supremacy Claus | Sep 19, 2009 12:28:12 AM

Oh, you crossed the line now! Leave James Bond out it!

Posted by: George | Sep 19, 2009 4:02:20 AM

I am occasionally bemused by the extent to which a blog devoted to sentencing law downplays, or flat-out ignores, sentencing law.

This case is almost certainly controlled by Francis v. Resweber, 329 U.S. 459 (1947). There, the Court, with Justice Frankfurter casting the deciding vote in his concurrence, held that after a botched execution considerably more horrifying than the one here, the state was nonetheless entitled to go forward a second time, which it did, successfully.

The gravaman of the opinion was that, where the error that caused the execution to get screwed up was not intended to cause pain and suffering, and was not a product of reckless indifference on the part of the authorities, the lawfully ordered execution can go forward. Readers might remember that a very similar analysis was adpoted by Chief Justice Roberts writing for the Court in the Baze case.

Posted by: Bill Otis | Sep 19, 2009 11:40:46 AM

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