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February 8, 2012

US Supreme Court refuses to vacate execution stay in Ohio

As reported in this Reuters article, this morning the US Supreme Court "refused to lift a stay of execution for Ohio convicted killer Charles Lorraine because the state failed to follow agreed-upon reforms for procedures on how it carries out the death penalty." Here is the full text of the SCOTUS one-sentence order:

The application to vacate the stay of execution of sentence of death entered by the United States District Court for the Southern District of Ohio on January 11, 2012, presented to Justice Kagan and by her referred to the Court is denied.

As SCOTUS-watchers know, this decision does not mean the Justices fully subscribe to all the novel rulings of District Judge Greg Frost in this on-going saga over Ohio's lethal injection protocol difficulties, it just means the Court did not think the it appropriate to vacate the stay imposed by Judge Frost and upheld by a Sixth Circuit panel.  Indeed, because defendant Lorraine stressed to the Justices that the death warrant had expired even before Ohio sought to vacate the stay of execution, it is quite possible the Court simply concluded that the passage of time served to moot the application.

What will happen next if the big question going forward.  It seems that, in order to get its machinery of death operational again, Ohio is going to yet again have to convince Judge Frost that it will actually follow the execution protocol that it keeps claiming it will follow.  In light of the litigation record, this may prove much harder for the state of Ohio than it probably should. 

Some related posts concerning Ohio's recent lethal injection litigation: 

February 8, 2012 at 11:43 AM | Permalink


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Another example of why the federal courts need to be out of the business of micromanaging death sentences.

The Court has tolerated any number of ridiculous stays. This is the latest in a long line. The Court, also, has imposed some ridiculous stays.

Posted by: federalist | Feb 8, 2012 1:13:36 PM

The state will never satisfy Frost, because he's determined to be unsatisfied. His attitude toward the state is poisoned at this point. The time will come when the state will have to seek his removal by the Sixth Circuit.

Posted by: Bill Otis | Feb 8, 2012 2:19:25 PM

I hate to part ways with my fellow bloggers above, but if Ohio would just follow the exact protocol and I believe Governor Kasich will agree, the state can get Frost out of this 7 year old ongoing case.

Posted by: DaveP | Feb 8, 2012 2:26:17 PM

i'm with daveP sorry bill and fed! but if the state would just FOLLOW it's own rules it would either be fine or at the very least it would PROVE it can't satisfy frost as you claim and then they would have grounds to get him removed.

now if i lived in a real dream world...this might indcate even the u.s. supreme court is FINALY getting fed up with lieing govt officals....but we all know that is NEVER gonna happen! LOL

Posted by: rodsmith | Feb 8, 2012 3:17:48 PM

The Sixth Circuit is going to uphold Frost unless he is clearly incorrect and they would never remove him from the case unless the state showed clear bias.

There are several other states that have executions on a regular basis without any problems. I fail to understand why Ohio cannot.

Posted by: DaveP | Feb 8, 2012 3:28:12 PM

DaveP and rodsmith --

It is always possible to find some niggling imperfection, if you're determined to do it. Frost is, therefore it will always be found.

The problem at first was Ohio -- I agree with that. But the problem now is that Frost has his back up. If I felt as invested in the case as Frost does, I'd recuse myself. But he won't do that either. So the state is stuck until it gets a different judge.

We should keep our eye on the ball. The important thing here is that this killer get what he has earned. Micromanaging state procedures is not the proper role of a federal district judge.

Posted by: Bill Otis | Feb 8, 2012 3:39:21 PM

Bill Otis

as in a previous post, Ohio should find someone to perfect the protocol to get Frost finished and done. But as long as the state continues to commit "imperfections", the defense attorney will run to Frost. You would think Ohio would have this down perfect after 7-8 years in Frost's court.

I also don't understand why states like Arizona make changes to the protocol and invite endless litigation in federal court. The state was fortunate to win in Judge Wake's courtroom, but more suits were filed this week. Give them an inch, they take a mile.

Posted by: DaveP | Feb 8, 2012 3:58:50 PM

DaveP, one of the issues cited by Frost is the fact that a different person certified the time of death. He shouldn't be removed from this case--he should be removed from the bench.

Yes, Ohio has to deal with this jerk of a judge, but the ultimate responsibility lies with the Supreme Court. The Supreme Court has a responsibility to ensure that states don't get jerked around, and the Supreme Court has not only fallen down on that job, it has issued ridiculous stays itself, starting with the Baze stays.

I get a lot of heat in here for ripping the Court on this issue, but can anyone show how the Baze statements are consistent with established Supreme Court precedent that last-minute filings are heavily weighed against the condemned and that the granting of a cert. petition doesn't excuse a last-minute filing.

Posted by: federalist | Feb 8, 2012 5:47:51 PM


I share your frustration with Ohio's inability to carry out the sentences. However as we commented on before, the 6th Circuit upheld Frost with 2 judges that almost always vote with the state. Some of the comments they made were critical. SCOTUS denied the motion to vacate, of course the posture of the case could have something to do with it as Doug wrote.

Once again, other states have executions with no litigation. Ohio should be able to do it also. They have executions scheduled more than 2 years in advance. Let us hope they can get this done once and for all. I would imagine the state is tired of going in Frost's courtroom.

As for your complaint about the Baze stays, SCOTUS blocked the executions because the inmates raised an issue that was pending in the court. When it was handed down, the stays were lifted. Standard procedure for them. Any time there has been a case that they had granted cert to was pending, they would issue stays then deny cert or vacate and remand to the lower court.
McCleskey v. Kemp, Pulley v Harris, Lockhart v McCree, etc.

I wonder how long Missouri, Arkansas, Tennessee and Kentucky are going to be bogged down in LI litigation? Ridiculous.

Posted by: DaveP | Feb 8, 2012 6:24:53 PM

To those who say the rules violated here were trivial, I say

“(t)he history of American freedom is, in no small measure, the history of procedure.”

U.S. v. Martinez-Fuerte 428 U.S. 543, 578, 96 S.Ct. 3074, 3092 (U.S., 1976)

Posted by: Dave from Texas | Feb 8, 2012 7:31:39 PM

So many opinions here, so few of them informed by reading the actual opinions from Judge Frost. But fear not, the vengeful and bloodthirsty among you can claim your pound of flesh in Mississippi tonight. I am so proud to live in a country where we have no problem executing the mentally ill. I will refrain from stating any more about that so as to avoid invoking Godwin's Law...

Posted by: Sysephus | Feb 8, 2012 8:23:52 PM


"DaveP, one of the issues cited by Frost is the fact that a different person certified the time of death."

sorry fed!

but in THIS case the state issued a set of instructions persuant to a FEDERAL LAWUSIT that would STOP that lawsuit and alllow the executions. those instructions stated "X" would ceritify the time of death!

then FAILED to have "X" do it!

so UNLESS the state wants to admit the entire thing was a FRAUD played on the court to get the ruling they needed to CONTINUE EXECTUIONS....that was NEVER meant to ACTUALY be followed!

they are as you say the judge is "TOAST!"

I still think he's being very very very nice. IF i was a judge and you lied to me under oath...YOU WOULD BE IN JAIL!

and NO i would NOT CARE WHAT YOUR JOB WAS! I would not care if you were the President of the United States....you walk in my court room and LIE under oath and i have it on the record YOUR ASS IS IN A CELL.

Posted by: rodsmith | Feb 8, 2012 8:44:11 PM

Lets see if the Professor posts on Today's execution and the 5th circuits vacating a TRO staying the execution Of Edwin Turner. Turner was executed this evening. It appears that District Judge Carlton Reeves (note: Obama Appointee) had no business issuing a TRO. There was no reason to stop the execution since evening if he got the access to the medical experts he would still be executed because he was not claiming mental retardation. He just wanted to delay delay delay. Justice was finally delivered. Maybe other District Judges will take notice.

(“The Supreme Court has never held that mental illness removes a defendant from the class of persons who are constitutionally eligible for a death sentence.”); In re Neville, 440 F.3d 220, 221 (5th Cir. 2006). Accordingly, even if Turner received access to his
experts and even if these experts were able to conclusively prove that Turner fell
into the category of individuals he describes, he would still have no
constitutional right not to be executed. The district court’s reliance on Ivey v. Harney, 47 F.3d 181 (7th Cir. 1995), is unpersuasive in this regard

Posted by: DeanO | Feb 8, 2012 9:34:51 PM

And you do realize that just because the SCOTUS has not previously issued a categorical ban on executing the mentally ill does not mean those claims cannot be litigated, right? Penry begat Atkins, after all. It's just a matter of time (and actuarial tables??) before a categorical is extended to, at the very least, certain types and/or severity of mental illness.

Posted by: Sysephus | Feb 8, 2012 9:53:01 PM

Judge Frost is a Bush appointee. He is a former prosecutor. His decision in this case is published at 2012 U.S. Dist. Lexis 3518.

As he explains in his decision, a doctor who was hired to examine/assess an Ohio inmate who was executed before Lorraine's scheduled execution, lied to the court in connection with this litigation.

Moreover, as Frost explains in his decision, the evidence adduced during this litigation revealed that Ohio officials have failed to comply with the execution procedures/protocol that Ohio itself established for its own executions. Thus, Judge Frost aptly described his decision blocking Ohio's execution of Lorraine as a "self-inflicted wound."

Given the foregoing, it is altogether unsurprising that the judge blocked Lorraine's execution. In matters pertaining to executions, what could possibly be wrong with an Article III judge requiring Ohio state actors to 1) testify truthfully to the judge, and 2) comply with the rules that they have established for themselves in carrying out executions?

Posted by: Calif. Capital Defense Counsel | Feb 8, 2012 11:52:25 PM

Sysephus --

"So many opinions here, so few of them informed by reading the actual opinions from Judge Frost."

Could you tell us who has not read the opinions, and how you know that?

"But fear not, the vengeful and bloodthirsty among you can claim your pound of flesh in Mississippi tonight."

Is anyone who supports the death penalty vengeful and bloodthirsty?

"I am so proud to live in a country where we have no problem executing the mentally ill."

I know, I know. Amerika Stinks. Sorry, but you're late with that one -- way late.

Posted by: Bill Otis | Feb 8, 2012 11:57:10 PM


1. Anyone here who opines about the Lorraine order without 1) also recognizing its posture in the broader litigation, and 2) without accurately acknowledging what deviation(s) were actually the basis for the order is either a) uninformed, or b) deeply disingenuous. Which is it? (Bonus points if you can correctly provide answers to (1) and (2).) I have read the orders. And I can confidently say that I have yet to see any discussion in these posts that would indicate an actual effort to understand what the Smith, Brooks and Lorraine orders actually stand for.

2. Yes. The death penalty as practiced in the United States today is nothing more than State-sponsored revenge killing, a collective desire for vengence taken on those who are frequently the underclass of our society already, the "other" who death penalty supporters demand be put down like dogs without any problem.

3. Are you advocating the execution of the mentally ill? Do you find it acceptable, whether under retributivist or utilitarian theories of sentencing, to execute the seriously mentally ill? On what basis? Or are you just taking the Hannity-esque and flimsy response to any thoughtful criticism of our country as 'Merka hating"?

Posted by: Sysephus | Feb 9, 2012 12:46:23 AM

CCDC, the answer to your question is obvious. The protocol itself is state law, and absent constitutional issues, federal courts generally have no power to force states to follow their own law, and they certainly have no power to stay executions based on the state not following its execution protocol for a previous execution so long as there is no risk of violating Baze. Since Ohio has a one-drug protocol, there is no chance of a Baze violation.

So what if Frost is a Bush appointee. Read his ridiculous opinions--the man is an arrogant buffoon. That the Supreme Court tolerates this sorry state of affairs is an embarrassment.

Posted by: federalist | Feb 9, 2012 1:35:53 AM

Sysephus --

1. You didn't answer the question. This is because, if fact, you do not know who has read the opinions, and the claim that you do is farcical, since you have no way of knowing. (N.B. Disagreement with you is not a sign of not having read the opinions. It's a sign of disagreeing with you).

2. Thank you for your direct answer that anyone who approves of the DP is vengeful and bloodthirsty. The list of such bad, bad people includes, of course, Abraham Lincoln, FDR, Ronald Reagan and Barack Obama. It also includes the entire Supreme Court.

This free-lance snarling is becoming so trite and tiresome from the Left. It's not just that people who support the DP are mistaken. Noooooooooooooo. Not that. It's that they're vengeful and bloodthirsty. The automatic (and venomous) attribution of evil motives to one's opponents is vintage McCarthyism. Why you people think it advances your cause is a mystery. What, do you think you're going to bully the rest of us? That we're just going to bow down to your holier-than-thou lecture?

What a joke.

3. "Are you advocating the execution of the mentally ill?"

I am advocating that the jury have the option of imposing the DP for aggravated murder undertaken by an adult who understood the difference between right and wrong and was sufficiently competent to have controlled his murderous behavior had he cared to. This of course entails the jury's right to reject the boatloads of phony, bought-and-paid-for (if often hilarious) defense shrink testimony that the defendant was, you know, depressed or something.

"Or are you just taking the Hannity-esque and flimsy response to any thoughtful criticism of our country as 'Merka hating'"?

First you say that the problem here is that those disagreeing with you are vengeful and bloodthirsty, that they willy-nilly seek execution of the "underclass," and that they want these people, guilty or innocent, to be "put down like dogs without any problem." After that salvo, you want to proclaim yourself the champion of "thoughtful criticism."

Thoughtful about what?

About how Amerika stinks, that's what. Do you think you're fooling anyone?

Posted by: Bill Otis | Feb 9, 2012 3:39:47 AM

The problem with Sys is he BELIEVES every murderer is mentally ill by the nature off his crime. Thus the DP, execution of the mentally ill, MUST be abolished. You see he is smarter than all of us, the courts, the founding fathers, juries, congress and most judges.

Posted by: DeanO | Feb 9, 2012 7:57:29 AM


You still havent answered my questions re Frost's opinions. You also subtly alter my comments in ways too many to try to point out so as to fit YOUR narrative. You also failed to address my point re vengence, instead choosing to muddy the waters with loaded terms I did not use, like "evil." And as far as arguments go, if you say my position reduces my credibility, how the same not apply to you? When, if ever, have you agreed with a court ruling that overturned a death sentence or stopped an execution? Your organization can't do that. So you have no more or less credibility on the issue than I.

Posted by: Sysephus | Feb 9, 2012 8:31:02 AM

You may be onto something there. And its not a matter of being "smarter" than anyone. It's simply a matter of increased information about the human brain and how it works (or how it malfunctions, in the case of most guys on the row). I would venture to say that in the same way that the death penalty is a divisive issue among even educated people today, the Founders, too, would have had passionate disagreements about the death penalty if they had known what modern neuroscience can tell us. Do you disagree?

Posted by: Sysephus | Feb 9, 2012 8:37:16 AM

Sysephus --

"You also failed to address my point re vengence, instead choosing to muddy the waters with loaded terms I did not use, like 'evil.'"

Give it a rest. When you say that retentionists are vengeful bloodlusters who target the underclass to "be put down like dogs without any problem," you're AVOIDING loaded terms??? And you're NOT describing evil???


What you're doing is exactly what I said (and you whistle right on past): You're attributing evil motives (or base motives or bad motives if you like) to those in opposition, never pausing to think that they might just be mistaken (much less, God forbid, that YOU might be mistaken). This kind of smug certitude and smearing the other side is, as I also said, vintage McCarthyism. America turned its back on that sort of rancid argument when it came from the Right, and it's going to give the same treatment to you and others in The Army of Cheap Outrage hurling epithets from the Left.

"And as far as arguments go, if you say my position reduces my credibility, how the same not apply to you?"

Ummmmmm, because I have a different position and different arguments?

Was that supposed to be hard? BTW, I never said beans about your "credibility" (speaking of "subtly alter[ing] my comments...so as to fit YOUR narrative".)

"When, if ever, have you agreed with a court ruling that overturned a death sentence or stopped an execution? Your organization can't do that."

You wanna tell me what "organization" I'm in? This ought to be good. You said previously you could tell (apparently through your computer screen, although you were mum about your means) who had read the Frost opinions, so I guess you know what "organization" I'm in, too.

I will, however, give you a hint. My only present paying job is as an adjunct professor at Georgetown Law Center. The Law School does not take a position on the death penalty. I am also a member of the Federalist Society, which likewise does not take a position of the death penalty. So I'll be especially eager to hear what the Abolitionist Stassi have found out about my "organization."

"So you have no more or less credibility on the issue than I."

Gee, Sysephus, you're admitting to having equal "credibility" with a vengeful bloodluster like me??!! That's a big step down for someone who gives the holier-than-thou lectures you do.

Still, I must demur. Irrespective of the position of the issue of the death penalty (mine aligning with FDR and yours with Timothy McVeigh), there is most certainly a difference in our "credibility."

I give my name, you hide yours.

Posted by: Bill Otis | Feb 9, 2012 1:29:31 PM

Wow, argumentive negativism and nasty sounding to boot. Sounds like one depressingly mean SOB with a major viewpoint to get across. Maybe an alias should be used.

Posted by: NY | Feb 9, 2012 5:04:59 PM

Are you claiming that you have no affiliation whatsoever with Kent Schiedigger's pro-d.p. organization? And I am still waiting for your example of when you supported a decision overturning a death sentence or staying an execution. And I also note that I never said pro-d.p. persons "target" the underclass. Read my post carefully. I simply made the point that the death penalty is visited most frequently on that strata of society, and that d.p. supporters don't seem to care. See, e.g., the online comments for almost any newspaper article of your choosing that involves a death case. Do you disagree with my assertion about the social strata from which an inordinantly large portion of death row inmates originate? And by the way, the ressurection of Joe McCarthy seems to be a pet project of a fair number of those on your side of the ideological divide right now, so I find your invocation of that jackass amusing. And finally, you claim to be a devotee of the Federalist Society; so you should be the last one to make the claim that only revealing one's identity can give credibility to one's arguments...or do the Federalist Papers lose all credibility because they were authored by Publius?

Posted by: Sysephus | Feb 9, 2012 8:00:21 PM

Sesyphus --

Weren't you just bellyaching about my supposedly subtly altering your words?

My, my.

Your first blast was, "When, if ever, have you agreed with a court ruling that overturned a death sentence or stopped an execution? Your organization can't do that."

Now, you want to quietly tiptoe away from that formulation to demand (emphasis added), "Are you claiming that you have NO AFFILIATION WHATSOEVER with Kent Schiedigger's pro-d.p. organization?"

So first it's "my" organization, and now it's do I have "any affiliation whatsoever" with such an organization.

You wanna run that complaint about subtly changing the words by me one more time?

Why you don't just ask, like your model McCarthy, "Are you now, or have you ever been, a member of the Communist Part......uh, make that the Criminal Jusice Legal Foundation?"

Is that what you're after, Senator?

The answer is no. Sorry to disappoint you.

FYI, I am proud to be a guest contributor to Kent's blog, Crime and Consequences. Guest contributors, in case you didn't know it, do not own the blog or have any rights to or in it. They appear at the sufferance of the blog administrator.

Whether I respond to any of the remainder of your slick remarks depends on whether I decide you're honest enough to worth spending the time with. I'm encouraged, however, that you do not deny that your earlier claim to be able to know who's read Frost's opinions, and who hasn't, is a farce.

Posted by: Bill Otis | Feb 9, 2012 8:36:41 PM

Here's how I can tell who has read the opinions, and not just the press summaries of them: no one here, including you, has yet identified the deviation that was the basis for the stay and injunction. Can you tell me what it is? If so, I will give you credit for reading the opinions (yes, that's plural, which, again, if you are actually digesting the Lorraine opinion, you will understand). Hint: it's not what Federalist keeps insisting it is.

Posted by: Sysephus | Feb 9, 2012 8:47:48 PM

congrats Fed! this statement has to be the craziest statement ever to come from the mouth of anyone letalone a lawyer!

" The protocol itself is state law, and absent constitutional issues, federal courts generally have no power to force states to follow their own law,"

If the fed's dont' have the power to make the state follow it's own law ...JUST WHO DOES?

sorry considering how often the last 50 years or so the federal govt has ORDERED the states to do oh so many things....that statement is just nuts!

it doesn't even pass the laugh test!

as for your claims on what reason the judge has for overruling them. Well maybe he hasnt' picked the right clause but he has the RIGHT ACTION

the state LIED it CONTINUES to LIE! He called them on it!

NOTHING else matters!

Posted by: rodsmith | Feb 9, 2012 9:51:02 PM

Looks like I picked the wrong day to try to resume reading SL&P comment threads.

Look, I know it's particularly frustrating when a Bush appointee thwarts the personal desires of pro-execution advocates, only to be affirmed in a per curiam order by a panel that includes two Reagan appointees, which is then left undisturbed by a Supreme Court in which Republican appointees similarly preponderate. But these things happen.

If it's any consolation, the states will undoubtedly have opportunities to kill other inmates down the road. And you'll always have your self-righteous self-certainty to keep you warm at night.

Posted by: Michael Drake | Feb 10, 2012 4:10:10 PM

Mr. Drake, here, here thanks for the Friday laugh :-)

Posted by: comment | Feb 10, 2012 4:56:42 PM

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