Jason Getsy is set to be killed by the State of Ohio Tuesday morning. The Governor can't make up his mind on whether to grant clemency. Ohio's lethal injection protocol continues under attack. And a panel of the Sixth Circuit just issued an opinion the entire panel thinks is wrong.
The issue is Getsy's lethal injection claim. In an earlier decision, the court said that you have to sue over lethal injection no later than two years after your case has been affirmed on direct appeal. Getsy, like many others, filed long after that, and as a consequence, the district court dismissed his case. On appeal, he argued that the court was wrong and his case should be heard.
What the panel said is that (1) the 6th Circuit has spoken; (2) you fail the test and don't have circumstances that make an exception to it; (3) the rule is terrible, but we can't change it. Judge Merritt dissented and will explain why later.
It really is up to the Governor now.