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September 17, 2009

Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?

This new AP article, headlined "Lawyers try to stop second Ohio execution try," reports on the latest legal news concerning Ohio's plan to try again to execute Romell Broom.  Here are highlights:

Lawyers plan state and federal lawsuits and a request to Ohio Gov. Ted Strickland to stop next week's unprecedented second execution attempt of a man whose lethal injection failed on Tuesday.

Cleveland attorney Tim Sweeney said Thursday that he expects lawsuits to be filed no later than Friday in an effort to halt the next attempt to put Romell Broom to death. Sweeney argues that a second try at an execution is unconstitutional. At the very least, he said, Strickland should further delay Tuesday's execution.

Broom "sustained both physical and mental injuries," Sweeney said. "It's going to take time for all the psychic trauma to dissipate. Even if it never goes away, I think it's wrong to try to do it again so quickly in these circumstances."

Strickland stopped Broom's execution after executioners tried unsuccessfully for two hours to find a usable vein. Broom, who at one point wiped his face with a tissue and appeared to be weeping, told his attorneys he was pricked as many as 18 times.

Broom, 53, was sentenced to die for the rape and stabbing death of a 14-year-old Tryna Middleton, a girl he kidnapped in Cleveland in 1984. Cuyahoga County Prosecutor Bill Mason said it was ironic that Broom was complaining about the execution given the nature of his crime. "I am absolutely certain that it was Tryna Middleton that suffered from cruel and unusual punishment," Mason said.

Broom remains at the Southern Ohio Correctional Facility, where the prison system is monitoring how much he's drinking, said prisons spokeswoman Julie Walburn. Officials want to make sure Broom is not dehydrated before the execution, but they can't force him to drink more, she said. Dehydration could make it more difficult to find veins, however, Walburn said there's no evidence that caused Tuesday's problems....

Also Thursday, two federal public defenders asked U.S. District Court Judge Gregory Frost to order that Broom be made available to them for a legal deposition.  The fact that Broom survived the execution "creates a singular opportunity to confirm that he, in fact, experienced serious pain in violation of his constitutional rights, not just a 'substantial risk' of serious pain," David Stebbins and Allen Bohnert argued in a court filing.

It was easy to predict that lots of litigation would ensure upon Ohio's indication that it wants to attempt to execute Broom again next week.  But, as the title of this post flags, it is hard to predict if and when and how the US Supreme Court will be brought into this fray (and, for that matter, whether the usual amici suspects will be eager to jump into this high-profile and high-speed and unique lethal injection litigation).  As I often have to say in these kinds of matters, stay tuned.

Related posts on botched Broom execution attempt:

September 17, 2009 at 03:34 PM | Permalink


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If someone is to be killed, the trauma of some IV's is trivial. Went to a party in Cali. This death penalty appellate lawyer is handing me the standard arguments justifying her reprehensible work. I tell her, the sole cruelty of any method is to set a date. Even a terminal patient does not have a set date of death.

She then opened up her arm. The crook of her elbow was black, blue and a bunch of colors in between. I look at it, and ask what was that? She said, she needed blood work, and people could not get a good vein and kept poking around there. I asked if that lab technician digging around passed Eighth Amendment muster, and why doesn't it in the death chamber? She said she consented to the digging around. I replied, the condemned had a $million's worth of due process, far more than her consent.

She didn't think I was funny. However, I thought she was hilarious, and that I had just gone through a lawyer Twilight Zone moment. The lawyer will pick on the tiniest pretext.

Posted by: Supremacy Claus | Sep 17, 2009 3:58:53 PM

"Cuyahoga County Prosecutor Bill Mason said it was ironic that Broom was complaining about the execution given the nature of his crime. 'I am absolutely certain that it was Tryna Middleton that suffered from cruel and unusual punishment,' Mason said."

Pandering to the local lynch mob, I see. What a jackass.

Posted by: JC | Sep 17, 2009 4:12:11 PM

Why don't they have Bill Mason rape him and stab him to death, and then put his head on a pike in front of the Rock and Roll Hall of Fame. What he did justifies lowering all of us to the same level, right?

Posted by: anon | Sep 17, 2009 4:54:50 PM

When we say, pretext, that means a false use of the law. I would like to see the abolitionists be investigated for professional ethics violation. Unfortunately, these false uses further cult rent seeking, and no discipline of such fraud can ever take place.

Posted by: Supremacy Claus | Sep 17, 2009 6:00:59 PM

"If someone is to be killed, the trauma of some IV's is trivial."

That was my thought too. I think it's comments like those in the article where the anti-death penalty crowd loses a great deal of credibility.

And JC. Since when is telling the truth "pandering". The killer may have suffered on death row, but it's not pandering to remind people that his suffering is not the only suffering at issue. It's the truth.

Posted by: Daniel | Sep 17, 2009 6:16:41 PM


Unless I missed something his victim wasn't kept in a cage for decades knowing death could come at any moment, watching her friends one by one carried off to be killed while other much more horribly guilty are left to live, and then systematically tortured in the name of the people in an effort to achieve "justice." What Broome did was inexcusable, brutal and inhumane. What Bill Mason and the State of Ohio want to do is likewise inexcusable, brutal and inhumane, except Bill & co. are doing it in your name and mine.

Posted by: .. | Sep 17, 2009 11:08:51 PM

I take it the pain element has mucho legal significance. Suffering from pin pricks sounds like a whole lot of sniveling, but depending on the reporter and the editorial slant of the paper, we don't know what was cut out or was taken out of context if anything. After giving it some thought, it is more than pin pricks, probably more like water boarding, because with the pin pricks that just about everyone got some time in their lives, we know the doctor is not trying to kill us. That would make a difference and the good guys who have empathy when the condemned don't probably can't imagine getting pricked by someone trying to kill. Who's the psychopath now?

Posted by: George | Sep 17, 2009 11:08:59 PM

It's not really clear to me why comparing the cruelty inflicted *by* the perpetrator to that inflicted *on* the perpetrator is useful. The former is illegal. It is a private act. Through the legal process and punishment of the offender, we collectively condemn it. The problem with the latter is that even if it is mild in comparison, it is done with the sanction of law. It is a state action. It is done in our name. It purports not to rend our values but to restore them. It seems to me that if we want to punish people in a way that takes the cruelty of the criminal act seriously, we need take cruelty seriously and not so casually inflict it on others.

Posted by: dm | Sep 18, 2009 8:12:19 AM

Death row inmates get reprieves all the time.

Posted by: federalist | Sep 18, 2009 12:41:12 PM

As typical on this blog, most commentators don't bother to read. I never justified the prosecutor's statement. I only said that his words could not be fairly described as "pandering". I stick with that.

I am sympathetic to the claim that comparing suffering is not all that useful a tactic. But insfoar as such a comparison reminds us of the fact that the interests of more than one party is at stake then I will accept it.

Posted by: Daniel | Sep 18, 2009 12:58:34 PM

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