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September 13, 2017

Potential controversy brewing after Ohio completes its second execution of 2017

This updated AP report on Ohio's execution completed this morning suggest that another lethal injection controversy could be brewing in the Buckeye State.  Here are excerpts from the AP report providing the basics (which I have placed in temporal order):

An Ohio killer of two people sang a Christian hymn and quoted the Bible in the minutes before his death.

The last words of Gary Otte were derived from a Bible account of Jesus Christ's crucifixion. He said: "Father, forgive them for they know not what they're doing. Amen." He earlier professed his love for his family, said he was sorry and sighed deeply, then began singing "The Greatest Thing," with such words as "I want to know you Lord."

His singing stopped at 10:39, before he gave a thumbs-up sign. His stomach rose and fell several times, resumed after a consciousness check by guards at 10:42, then appeared to fall still a couple minutes later. The time of death for the 45-year-old Otte was 10:54 a.m.

Relatives of his two 1992 victims were among the witnesses. 

A federal public defender who witnessed the execution of a condemned Ohio killer of two says she thinks mistakes were made.  Defense attorney Carol Wright tried unsuccessfully to leave the witness room to alert a federal judge there appeared to be problems. Wright says she believes the rising and falling of Gary Otte's (OH'-teez) chest indicated he was suffering a phenomenon known as air hunger.

A spokeswoman for Ohio's prison system says the state followed proper security protocols when a lawyer witnessing an execution tried to leave the witness room.  JoEllen Smith, of the Ohio Department of Rehabilitation and Correction, says once attorney Carol Wright's intention and identity were confirmed she was allowed to leave.

Smith said Wednesday's execution of condemned killer Gary Otte was carried out in accordance with prison policy and without complication.

Wright tried unsuccessfully to leave the witness room to alert a federal judge there appeared to be problems. Wright says she believes the rising and falling of Otte's chest indicated he was suffering a phenomenon known as air hunger.  Wright says she believe mistakes were made. She reached the judge overseeing Otte's case, but it was too late.

UPDATE: This local article provides some expanded details on the concerns of Otte's attorney under the headline "Attorney for executed Parma murderer says she believes inmate suffered pain during lethal injection."

September 13, 2017 at 04:32 PM | Permalink


At the point she first tried leaving what exactly did she think she could accomplish? My understanding is that Ohio uses a single drug protocol. Say that she instantly got in contact with the judge and that the judge instantly issued an order to halt the execution. Once the drug is injected I see such an order being akin to an order to halt a hanging mid-drop. Biology no more respects the law than does gravity.

Posted by: Soronel Haetir | Sep 13, 2017 5:22:26 PM

Mark Osler wrote a book entitled "Jesus on Death Row: The Trial of Jesus and American Capital Punishment."

Posted by: Joe | Sep 13, 2017 5:27:59 PM

Whatever. Committed anti-DP lawyer tries to manufacture a claim . . . .

Posted by: federalist | Sep 13, 2017 7:56:57 PM

The coverage has a "he said/she said" quality that reflects the expected role of each group. What is required is some sort of independent examination of each execution to determine if there is any problems. If it can be done with scoring plays, can be done here.

Posted by: Joe | Sep 14, 2017 10:46:35 AM

What is "required"--um, by whom? The fact is that the breathing reflex (which reflects well over 300 million years of evolution since Tiklaatik took steps on dry land) does not mean that there was pain. People struggle for breath even when completely unconscious.

And, of course, any oral order of a federal judge to stop an execution should be ignored as a brutum fulmen. If it ain't served or in his courtroom, it ain't an order.

Posted by: federalist | Sep 14, 2017 3:09:19 PM

I think it is required as good policy to protect the overall sanctity of the system.

I didn't provide any analysis of the specific events. In a NFL game, there is an automatic review on scoring plays. There is no exception for "obviously he scored." Likewise, when Ohio executes someone, an independent entity -- both the state and the defense having its own biases -- can examine the results and ensure there weren't any problems. Maybe Ohio does that now -- don't know the set-up.

But, this he said/she said citations of a few details doesn't tell me much one way or the other.

[I'm not aware of this "oral order" rule. Moving past the death penalty context, it seems a rather absolute policy, especially if there is some sort of video hook-up. Phone warrants, e.g., was referenced in a recent Supreme Court case.]

Posted by: Joe | Sep 14, 2017 4:07:35 PM

With respect to the "oral order," Joe, you have to look at the practical aspect. If I were running an execution, and some defense attorney had some judge on the phone and the judge said "Stop the execution." I'd say, "Respectfully, judge, you don't have any personal jurisdiction over me, and I don't have to listen to a damned thing you say. I have not been served with process." And if the judge started to threaten, I'd politely tell him to jump in a lake. Judges can't just call people up and tell them to do things. As for a video hook-up, once again, the prison doesn't have to do that. In fact, if a judge tried to give an order to a free citizen upon whom no process was served, the judge should be disciplined and the state in which he or she is licensed should disbar him or her (not that that would affect a seat on the federal bench, but it would send an appropriate message about lawlessness).

With respect to this issue--he breathed--so what? Even if it is "air hunger", so what? Without any evidence that there was pain that gave rise to a constitutional violation, there is no basis to expend resources "just to be sure."

To a large extent, the capital defense bar and the anti-DP crowd have succeeded in throwing up a lot of roadblocks, many of which are simply not justified in terms of what the constitution actually requires.

Posted by: federalist | Sep 14, 2017 5:41:25 PM

People in a total coma, who require a respirator to breathe, will wince when pinched or hurt by a procedure. Was there any such evidence of pain in this condemned?

Agonal respirations are brain stem reactions to the breathing muscles in the dying, lasting up to an hour, and sometimes being vocal and noisy. They are part of passing away.


Posted by: David Behar | Sep 14, 2017 5:42:29 PM

The families of the murder victims should hunt this feminist, nitpicking lawyer, and just beat her ass. Not being allowed to leave was a constitutional crisis to this lawyer.

I support a victim self help movement that targets their enemies, and the people protecting, privileging, and empowering vicious, violent criminals,including legislators, judges, and advocates. These are thieving rent seekers, and a threat to our nation.

Posted by: David Behar | Sep 15, 2017 12:55:33 AM

What was the judge supposed to do when alerted? What a bunch of horse manure.

Posted by: Al Jackson | Sep 15, 2017 9:46:18 AM

Search warrants can be done over the phone. So, "oral orders" that result in control over third parties, including searching their own body in some cases (e.g., roadside alcohol testing), are done. The specifics are left to those knowledgeable about such things.

The practicality issue is duly noted and trying to stop an execution that already started is generally going to be impractical though reports of trying to do so go back to ancient times [e.g., the Jewish historian Josephus apparently intervened during a crucifixion & as I recall, one of the people survived]. But, there are going to be various cases involving prisons etc. where video hook-ups etc. would be practicable. And, good policy.

If there was no problem here, the investigation I prefer would by your lights would easily determine that. In fact, so would a judge, who by both sides are repeatedly asked to rule in ways that have little basis.

Posted by: Joe | Sep 15, 2017 11:22:07 AM

Joe, that search warrants (an ex parte procedure) are available by phone elicits a response of "So what?" The search warrant applicant is seeking out court approval--not so the executioner. The search warrant is a condition precedent to the exercise of police power (you know, that constitution thingy). In the case of an execution carrying out a judgment and an execution order, the court, without jurisdiction cannot order him to do a damned thing. And the judge would be violating his or her judicial oath. As for "phone hook-ups" etc., why would that be "good policy?" If the goal is thwarting executions, then yes, I guess it is good policy--but this opens up the process to all kinds of mischief and confusion about which court is doing the monitoring--the appeals court, the trial court, federal court, state court, both? And are we really going to have oral argument while the guy is on the gurney in front of victims' families. And can a judge really order someone to withdraw a needle or stop an execution midway? What if the guy says that he wants an indemnity for doing so? Etc. etc. It would be a circus.

This is nonsense on stilts and emblematic of the unfortunate view (that needs correcting) that judges are/should be these all powerful guardians. There are two Justices who have held that people who don't have a right to walk our streets (i.e., alien criminals) somehow have the right to walk said streets if their home countries won't take them back. To condition society's right to exclude criminals from our midst on the actions of foreign governments (as a constitutional matter) is so collossally obtuse it calls into question their fitness for deciding anything, let alone intervening in a sovereign state's enforcement of a criminal judgment.

Posted by: federalist | Sep 15, 2017 1:13:50 PM

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