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November 5, 2011

Ohio on verge of getting its execution chamber operational again

As detailed in this local Ohio story, headlined "Inmate on Death Row loses two court appeals," it appears that officials have done enough to satisfy judges that Ohio should be able to get back to executions after a mini-moratorium for nearly half the year.  Here are the particulars:

Condemned Cleveland killer Reginald Brooks’ bid to avoid execution on Nov. 15 was rejected yesterday by the Ohio Supreme Court and a federal judge.  U.S. District Judge Gregory L. Frost denied a motion for a restraining order sought by attorneys for Brooks, 66. However, Frost said he was not ruling one way or the other on the constitutionality of Ohio’s lethal-injection process.

“Ohio has time and again struggled with competence and consistency, and the court remains wary,” Frost said in a decision.  However, he said Brooks did not make the case that questions about lethal-injection protocol — which has caused problems in past executions — are sufficient reason to halt his execution.

Later yesterday, the Ohio Supreme Court denied Brooks’ motion seeking to postpone his execution, in part to allow a court-appointed task force to complete its yearlong task of studying the state’s capital-punishment system.

Carlo LoParo, spokesman for the Ohio Department of Rehabilitation and Correction, said the prison agency has “substantially bolstered its training, documentation and quality-review procedures to demonstrate Ohio’s commitment to a humane, dignified and professional implementation of” lethal injections. “Ohio’s revised lethal-injection policy and practices are the most comprehensive in scope and will be the best documented in the nation,” LoParo said.

Brooks was sentenced to death for fatally shooting his three sons, ranging in age from 11 to 17, while they slept in 1982. Two days earlier, his wife had him served with divorce papers. He would be the oldest Ohioan to be executed of the 45 who have been lethally injected since 1999.

November 5, 2011 at 08:00 PM | Permalink


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“Ohio has time and again struggled with competence and consistency, and the court remains wary,”

This jurist really is insufferable.

Posted by: federalist | Nov 6, 2011 12:50:50 PM

I actually took the time to plow through the turgid opinion. Frost is truly execrable. Here's but a sample of this learned jurist's writing:

" . . . Mohr's testimony in particular indicated a rejection of the pervasive bureaucratic ennui that this Court has long targeted as notably troubling. He described the Smith decision as difficult to read, which concerned this Court and its law clerks until Mohr explained that he did not mean there was inept writing presenting a confusing Order and Opinion."

"After the Smith rebuke, it appears that the state officials involved here have finally recognized that subject adherence to the protocol and too much discretion to depart from core provisions or safeguards are neither laudable nor constitutionally permissible approaches."

Brutal. The first quote simply shows Frost to be an arrogant twit. The second one shows him to be a complete idiot. Since when is deviation from a LI protocol unconstitutional? I must have missed that in Baze. And the fanciful EPC argument--well, it might help the learned jurist to realize that the only right that the prisoner has is that the method by which he is executed does not cause too much risk of harm. Unless he can show that the changes subject him to such risk, then the EPC has not been violated, as he has been treated the same (i.e., subjected to a constitutional execution procedure). Of course, Frost subjects deviations from the LI protocol to a "strict scrutiny" standard. Remarkable.

It's very difficult to figure out what the most laughable part of Judge Frost's opinion is. My fave is this: "First the docket . . . presents nearly one thousand fifty filings spread out over seven years. Second, given this first point and given that this Court is in the business of resolving disputes and not charged with fashioning arguments from nearly random asides, some might argue that informing the Court of the specific arguments asserted and providing supporting authority for the positions taken would be a more prudent litigation strategy."

The utter failure of this learned jurist to understand that he shares a large part of the blame for the state of the record and the fancifulness of the condemned's arguments is mind-boggling. And as for casual asides, Frost's opinion is replete with them, and many are inappropriate, e.g., "Defendants have figured out that paying lip service to what is important to this Court (i.e., what is important to the Constitution) is the better strategy." With respect to the condemned's arguments, well, given Frost's swallowing of the idea that consultation with a medical doctor (if not in the protocol) is verboten, how can one expect a death row inmate to leave anything on the cutting room floor. After all, this learned judge actually believes that "it does not matter whether there is a qualifying risk of severe pain . . . ."

Maybe Scalia was onto something about the watering down of the quality of the federal bench.

Posted by: federalist | Nov 6, 2011 2:06:12 PM

Wow...Frost actually releases a pro-DP decision. I almost fell off my chair. Good grief...whats next by the liberal crusaders and slip n fall lawyers. Now if they only start scheduling more than one a month we may actually start reducing death row in OH.

Posted by: DeanO | Nov 6, 2011 6:18:33 PM

I think Frost realizes that there is nothing he can do about this one. Yeah, he may not like the DP, but he probably dislikes getting reversed even more.

Posted by: federalist | Nov 6, 2011 6:31:11 PM

Don't know anything about Judge Frost. Is he liberal on all criminal law issues?

Posted by: justice seeker | Nov 7, 2011 9:32:33 AM

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