But what it comes down to is the language I excerpted for the title of this post.
The subject is the proposed murder of Charles Lorraine by minions of the State of Ohio.
Wednesday, you'll recall (and if not, you can read about it here), District Judge Gregory Frost said that the state could not go ahead and execute Charles Lorraine on Wednesday because it can't be trusted to adhere to its constitutional duty to execute him properly. The execution protocol is just fine, the judge said, and Ohio swears it will obey the protocol. But Ohio keeps swearing to that and then refusing to obey it's protocol. Which means that the killers just do pretty much whatever they want, and that's unconstitutional.
The latest events in this litigation invoke the saying that the more things change, the more they stay the same. Ohio created a new protocol and its agents indicated that they would comply with that protocol, presenting this Court with an interpretation of the protocol in which there are five core components from which they cannot vary. Ohio’s failure to stand by its representation that all possible deviations flow up to the Director means that, once again, “[i]t is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This [remains] nonsense.” Cooey (Smith), 2011 WL 2681193, at *1The state promptly appealed. It asked the 6th Circuit Court of Appeals to vacate the stay. Essentially, the state's argument was
Hey, close enough. You can't hold us to the trivial details. It's not like we're using bludgeons or something. We said lethal injection with one drug and we really do that part. We're the government, for gods sake. You can't expect us to do just what we promised.This afternoon, a panel of the 6th Circuit, and not a capital-defendant-friendly panel, issued its own bitch slap.
We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted. As the district court found, whether slight or significant deviations from the protocol occur, the State's ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.Judge Frost said it was the state's own fault. All they had to do was follow the rules they made up. How hard can that be? But the state's protestations of honesty, he discovered, were lies.
Defendants have once again fooled the Court.Which isn't nice to do. And does tend to have consequences. In the form of case by case judicial monitoring of executions.
Because the State cannot be trusted to fulfill its otherwise lawful duty.Panel Op Affirming Stay