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September 15, 2009

Ohio struggling, legally and practically, with effort to execute offender today

One would think that, with four executions completed in the last few months, Ohio would now have its modern system of state killing down to a science.  However, as this new AP report details, the state is having a very hard time completing an execution that was scheduled for 10am this morning:

A lawyer for a condemned inmate in the state death chamber says execution team members have taken a break after struggling to access the inmate's veins. Attorney Tim Sweeney says the team is having trouble inserting IVs into the arms of Romell Broom, sentenced to die for raping and killing a 14-year-old girl.

It was the second delay of the Tuesday execution, originally scheduled for 10 a.m. Broom entered the death chamber shortly before 2 p.m. after losing a last-minute appeal request.

In 2005, an execution was delayed for more than an hour after the team failed to properly attach an IV, an incident that led to changes in Ohio's execution process.

Though I am about to head to class, this seems like a story worth watching closely for a variety of reasons.  First, I think this might be the first significant examples of a difficult (botched?) execution since the Supreme Court approved the constitutionality of lethal injection protocols in Baze last year.  Second, as detailed here, the Sixth Circuit has been fighting over whether it can even consider on the merits a post-Baze challenge to Ohio's lethal injection procedures.  Third, Ohio has lots more execution scheduled for the next few months, and these difficulties might end up causing some notable political ripples.

Whether and how this story becomes a big deal might turn ultimately on whether and how Ohio finishes its attempts to execute Romell Broom today.  If Ohio cannot complete this execution (or if it completed the execution and lawyers can claim it was badly botched) this could become a huge story.  But if the execution is completed with little final fuss, not so much.  Stay tuned.

UPDATE:  This local story now indicates that Ohio's Governor has stepped in: "Strickland ordered a week-long reprieve this afternoon after executioners struggled for about two hours to locate suitable veins for inserting IVs into 53-year-old Romell Broom."  As suggested above, this could become a big story if the abolitionist community seeks to jump on it.  But I suspect that, in the wake of Baze, most of the abolitionist community has moved on to other battle-fronts.

September 15, 2009 at 03:48 PM | Permalink


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Tracked on Sep 15, 2009 6:17:24 PM


Once again, the states fall into the trap of "appeal = stay". The state should have continued the procedure despite the pending appeal.

States make it way to easy for these last minute appeals. There is no rule that says that states have to facilitate courts getting their orders to the right person to stop an execution.

Posted by: federalist | Sep 15, 2009 4:03:01 PM

"There is no rule that says that states have to facilitate courts getting their orders to the right person to stop an execution."

You think that if a federal court has issued a stay of execution, it's valid for a State to prevent it from being enforced through deliberate inaction? Put aside the comparison you're drawing between the filing of an appeal and the granting of a stay for the moment.

Posted by: JC | Sep 15, 2009 4:46:19 PM

JC, I didn't say that. But court orders have to be transmitted. And there's no rule that fax machines have to be turned on or that phone calls have to be answered.

Posted by: federalist | Sep 15, 2009 5:01:28 PM

Strickland delayed execution for a week.

Posted by: federalist | Sep 15, 2009 5:12:42 PM

"JC, I didn't say that. But court orders have to be transmitted. And there's no rule that fax machines have to be turned on or that phone calls have to be answered."

If you think it is permissible for a State to keep its fax machine turned off in order to prevent the receipt of a federal stay order, then I think that is exactly what you said.

Posted by: JC | Sep 15, 2009 6:18:23 PM

So litigants have to facilitate service . . . .

Posted by: federalist | Sep 15, 2009 6:33:16 PM

Litigants are obligated to obey the orders of the court. Deliberately evading knowledge of an order for the purpose of circumventing the authority of the court is contemptuous.

Posted by: JC | Sep 15, 2009 7:32:57 PM

Federalist = Anarchist, your comments make it clear that you don't like the rule of law unless you agree with the law being enforced at the time. Deliberate ignorance must be an aspirational goal for you -- just think what our government would like if all the bureaucrats were deliberately ignorant instead of being ignorant in fact.

Posted by: Not a bomb thrower | Sep 15, 2009 9:07:46 PM

Guys, just because I am in a lawsuit doesn't mean I have to answer my phones.

Posted by: federalist | Sep 16, 2009 9:59:22 AM

Federalist, when it becomes acceptable for a government to behave with no greater grace or decency than the most shifty and obstreperous ordinary litigant, we will have become (precisely) a society governed by the lowest common denominator. That will not be government consistent with populism, rightly understood. It will not be government in conformance with democratic principles or anything close. It will be a tyranny of twits and thugs; a sovereignty of scofflaws.

Posted by: Dean Strang | Sep 16, 2009 1:12:35 PM

Dean, then the condemned should file their appeals earlier. Then the problem could be avoided. Moreover, why should a murderer get the benefit of all sorts of state employees jumping through hoops to help the murderers' "kitchen sink" last-minute litigation strategy. I'd make the murder turn square corners. And that means that I don't make it easy for some court to call off an execution by making a phone call.

Posted by: federalist | Sep 16, 2009 1:41:28 PM

I understand your argument, Federalist. It certainly is not inappropriate to set procedural rules and hold everyone to them. But again, if the murderer sets the accepted general standard for the sovereign, collectively we are destined to degenerate pretty quickly to the murderer's level.

Posted by: Dean Strang | Sep 16, 2009 2:19:10 PM

Well, Dean, if we held everyone to those rules, then we wouldn't have these problems. But I see no reason why Deputy AGs should be kept up way into the night because some murderer files his claim very late. It's ridiculous. And I don't think the state has to participate in making those tactics easier.

Posted by: federalist | Sep 16, 2009 3:16:45 PM

Federalist, we ought not go back and forth indefinitely. If you happen to imagine, though, that someone on death row -- or, more accurately, his counsel -- complacently plots not to seek relief until the 11th hour as a strategic matter or because she is laconic about rules, you probably don't understand how the process actually works on the ground. The practical obstacles are too many to catalog, and I suspect you wouldn't accept a stranger's word any way. So, a suggestion: take a death penalty post-conviction challenge, at the state post-appeal collateral attack stage, and learn for yourself. Tell me later, after you have confronted the reality that your client will die if you prove to be the second best lawyer in the case, whether it all still looks the same to you after two, three, five or eight years. Tell me whether you or your client were the actual cause of any unwarranted delay in that process. And tell me then also whether you still view government actors with the same deference and broad confidence.

Posted by: Dean Strang | Sep 16, 2009 4:28:29 PM

Hey (anti-)federalist:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

Posted by: true federalist | Sep 27, 2009 6:18:07 PM

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