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July 8, 2011

New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules

As noted in this prior post, U.S. District Court Judge Gregory Frost this morning issues a ground-breaking (and perhaps extremely important) ruling which stays an execution based on a death row defendant's Equal Protection claim concerning how Ohio runs its machinery of death.  Though I am still reading through Judge Frost's thorough and thoughtful Smith opinion, these passages jumped out at me (and prompted the title of this post due to part I have put in bold):

Throughout the course of this litigation, Ohio time and again has used its written protocol as both a sword and a shield.  Defendants have attacked various inmates’ claims of dangerous state practices by pointing to the written protocol as evidence of official policy and procedure that provide salvaging order and predictability.  At the same time, Defendants have cloaked themselves in the various permutations of the written protocol, which they have periodically updated to formalize the customs and practices that propped up an often teetering protocol, all in an effort to shield Ohio’s lethal injection practices from invalidation under the Constitution.  But after literally over half a decade of litigating the issues that way, it now appears that the state officials involved have decided either to change their minds or to come clean on what the actual beliefs and practices are and not what they have previously told this Court to be true....

The man who once testified that the written protocol carries the force of law now offers that the written protocol does not set out mandated regulations.  The controlling set of mandates constituting the written protocol that often shielded Ohio’s practices from constitutional infirmity and provided the state with a sword to puncture inmates’ claims is thus revealed to be an advisory compilation of guidelines subject to being ignored....

The latest evidence presents at least these four deviations from the core components of the written protocol.  Such core deviations as a matter of policy were once considered improbable....  [But what] was once a theoretical concern relegated to the unlikely or impossible has become (or has finally been revealed to be) reality.

Ohio’s execution policy now embraces a nearly unlimited capacity for deviation from the core or most critical execution procedures.  No inference is required to reach this conclusion, much less the stacking of inference upon inference.  Rather, as set forth below, simply paying attention to the hearing testimony mandates this conclusion.  These core deviations are not mere cosmetic variations from an optional or even aspirational set of guidelines.  Rather, the deviations are substantive departures from some of the most fundamental tenets of Ohio’s execution policy. These tenets or core components embody concerns that cannot be disregarded and are described below.

The passages I have highlighted showcase, I believe, that Judge Frost had been hearing Ohio defend its execution practices for years based on the lethal injection protocol rules the state created, but then learned at a recent evidentiary hearing that Ohio never actually follows its own rules with real care or much concern.  Thus, this important ruling emerges from the death row lawyers making clear at an evidenitary hearing that Ohio does not really do what it says it is doing during an execution, and Judge Frost making clear that the Constitution here demand that Ohio keep its word when it says its lethal injection process follows the protocols it has created.

July 8, 2011 at 12:20 PM | Permalink


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Judge Frost isn't that bright. We know that based on some of the laughable things he has written in the past, which I have commented on. The idea that a state can never deviate from written procedures in carrying out an execution is laughable on its face. The idea is that the courts have to have some way of knowing that the states can carry out an execution with some degree of competence. The best way to know this is to have a written protocol. If the deviations don't change the conclusion of competence, then there is no problem. How hard is this?

Posted by: federalist | Jul 8, 2011 1:23:37 PM

Here, it seems, the deviations have changed the conclusion of competence, no?

Posted by: = | Jul 8, 2011 3:05:20 PM

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