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July 13, 2011

Ohio decides not to appeal federal district court ruling in Smith halting execution

Regular readers may recall posts from last week here and here reporting on the ground-breaking Smith ruling by U.S. District Court Judge Gregory Frost last Friday, which stayed an upcoming execution based on a death row defendant's Equal Protection claim concerning how Ohio runs its machinery of death.  Now this local piece, headlined "Ohio executions may be on hold to adjust procedures," reports that Ohio has decided to try to satisfy Judge Frost (through tweaks of its execution process?) rather than seek an immediate appeal to Sixth Circuit to get the Smith ruling reviewed.  Here are the (surprising?) details:

Executions in Ohio could be on hold for an indefinite period while officials work with a federal judge who criticized the state's "haphazard application" of its lethal injection policies.

Ohio Attorney General Mike DeWine told The Dispatch that while he disagrees with U.S. District Court Judge Gregory L. Frost's decision, "the state is going to take that decision and follow it and make revisions and comply with it. Once that is done, I would anticipate that the state would go back to Judge Frost."

DeWine decided not to appeal Frost's order halting Tuesday's scheduled execution of condemned killer Kenneth Smith of Hamilton, Ohio. Smith, 45, was to be executed at 10 a.m. Tuesday at the Southern Ohio Correctional Facility near Lucasville for his role in the slayings of Lewis and Ruth Ray in their home on May 12, 1995.

Smith's attorneys questioned the Department of Rehabilitation and Correction's adherence to its execution policies, specifically regarding the required number of team members present and documentation of the mixing of drugs.

Frost's said in his decision that, "Ohio pays lip service to standards it then often ignores without valid reasons, sometimes with no physical ramifications and sometimes with what have been described as messy if not botched executions."

The ruling could have a far-reaching impact on other death penalty cases pending in Ohio. DeWine said the goal would be to "comply within a short period of time," he would not offer a time frame. The Ohio Supreme Court has set nine additional execution dates through September 2012.

In a statement, the state prisons agency said: "Those involved in implementing court-ordered lethal injection sentences in Ohio have consistently carried out this extremely difficult task in a dignified, professional and humane manner. We will use Judge Frost's decision as an opportunity to improve our policies and procedures in preparation for carrying out future lethal injection sentences."

If I recall correctly, many commentors to my  prior posts on Smith predicted it would only be a matter of time before the Sixth Circuit reversed the decision.  It now appears that Ohio is not even going to give the Sixth Circuit that chance.  How interesting.

Some recent related posts:

July 13, 2011 at 03:43 PM | Permalink


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If the plaintiff's have their way, this could turn into another Morales in CA. I don't think Ohio's problems are anywhere near California's. As suggested in my prior posts, I didn't anticipate the 6th overturning Frost if the state appealed.

Posted by: DaveP | Jul 13, 2011 4:03:01 PM

Good for Ohio. Fixing the process and going back to the judge with those fixes will take a lot less time and effort than appeals that might take years to resolve. Also making sure they follow a constitutional execution protocol is the right thing to do. I commend the Ohio Department of Corrections and the Ohio AG's.

Posted by: Paul | Jul 13, 2011 4:48:17 PM


good post. Much better to fix it than waste 6 years in court like California.

As I posted earlier, this is the first time I recall that Frost blocked Ohio from carrying out executions. He sided with them every time until this.

Posted by: DaveP | Jul 13, 2011 4:56:02 PM

California fixed their problems years ago. It has done them little good and there likely won't be any executions this year.

Posted by: MikeinCT | Jul 13, 2011 10:36:02 PM

Pathetic. Frost is getting way over his skis and is punishing victims' families. Too bad DeWine doesn't have more guts.

Posted by: federalist | Jul 14, 2011 8:15:07 AM

federalist and Bill, so much for the meritless district court decision done by a "hack" judge. Even the state sees merit and won't appeal!

Posted by: anon13 | Jul 14, 2011 9:48:06 AM

Or they think there isn't enough time left before the warrant expires to overturn the stay.

Posted by: MikeinCT | Jul 14, 2011 10:08:04 AM

anon13--the state probably thinks that it's easier just to satisfy this hack. Bottom line, anon13, can you defend the hack's argument that involving a medical doctor in an execution is an unconstitutional deviation from protocol? My guess is that you wont even try

Posted by: federalist | Jul 14, 2011 10:11:07 AM


California's regulations were approved last year right before they set the execution date for Albert Brown. It has to be rehashed now before a new federal district judge because Fogel got transferred.

I think the new gang in charge in California doesn't want to carry them out because of the delay they requested from Fogel to defend their protocol next year.

Posted by: DaveP | Jul 14, 2011 3:18:54 PM

Actually, the problems that Fogel mentioned when he stayed the Morales execution were solved by 2008 when the state built a new chamber and hired and trained a new team.

Posted by: MikeinCT | Jul 14, 2011 8:54:13 PM

federalist --

anon13's problem is that he's too ideologically blind to understand that the purpose of litigtion is to advance the client's interest as quickly and cheaply as possible. Here, DeWine has concluded, almost certainly correctly, that Ohio's interest -- i.e., executing the killer -- can more quickly and cheaply be achieved by going back to the district court than by spending months or years with petitions for Sixth Circuit and Supreme Court review.

It's not that hard to figure out. anon13 just wanted to take the typical abolitionist cheap shot.

Posted by: Bill Otis | Jul 16, 2011 6:52:06 AM

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