It's Still Nonsense - with UPDATE

But the law is what it is, and the facts are what they are. The Constitution demands that a judge honor the rights embodied in that document, that a judge appreciate the nuance involved in those rights rather than adopting a constitutionally irresponsible, “big-picture, close enough” approach, and that a judge follow the evidence presented by the parties to whatever principled conclusion it leads–no matter how easily avoided and frustrating that conclusion may be.

U.S. District Judge Gregory L. Frost, In re: Ohio Execution Protocol Litigation (Jan. 11, 2011)

If you've followed this mess at all, you know that in July last year, Judge Frost explained and evaluated Ohio's approach to executions.

It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This is nonsense.

And it violated the Constitution's guarantee of equal protection.  So he granted a preliminary injunction staying the execution of Kenneth Smith.  For the next few months, what with a couple of reprieves and a commutation and the Smith order, Ohio didn't actually kill anyone.  Instead, it futzed around with its execution protocol until it came up with something that would convince the judge that they'd learned their lesson.

At a hearing at the end of October and into early November about whether they'd get to kill Reginald Brooks, they convinced him. They were really, really serious and would do what they said. Honest injun. Scout's Honor.

Here's how Judge Frost explained it this morning.

Notably, the crux of the rationale behind that decision is that Brooks failed to present
evidence that he was likely to prove that Defendants are not doing what they say they are doing in conducting executions under the current protocol. Of significance is that, unlike in the Smith proceedings, Defendants were now saying that they got the message that it mattered that their actions matched their words. Trust us, Defendants said, we will not deviate from the core components of the protocol. This Court accepted that contention. Trust us, Defendants continued, we will let only the Director decide whether to allow any potentially permissible deviation from the non-core components of the protocol. This Court also accepted that statement.

Oh, sorry.  I left out the last sentence of that paragraph.

As set forth below, Defendants have once again fooled the Court.

What the state said in the Brooks hearings and in its latest iteration of the killing protocol is that any deviation from non-core portions of the protocol (the core portions concern the actual execution) would have to be submitted to and approved by the Director of the Department of Rehabilitation and Correction.  See that way, the system would be arbitrary and random, which is the Equal Protection problem.

When they killed Brooks in November, there were a bunch of deviations from the non-core portions of the protocol.  None of them were submitted to and approved by the Director.

Oh, but gee, close enough for government work.

Except, no.  It doesn't work that way.  If there's no check on deviations, well then,

[B]y now again endorsing a system in which non-core deviations can occur without approval and without consequence, Ohio has punctured the practice that lent its new protocol the saving grace this Court afforded it in the Brooks Opinion and Order.

And now the state won't even pretend that it will follow the protocol.

If there were testimony in this record that all such deviations would be presented to Mohr for those inmates following Brooks such as Lorraine, today’s result would likely be different. This is what frustrates the Court. Do not lie to the Court, do not fail to do what you tell this Court you must do, and do not place the Court in the position of being required to change course in this litigation after every hearing. It should not be so hard for Ohio to follow procedures that the state itself created. Today’s adverse decision against Defendants is again a curiously if not inexplicably self-inflicted wound.

And so.

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 *1. 

I said the other day that the Rule of Law is in large part myth.  It's not a sometime thing. Either it's the norm or it's nothing.

In Judge Frost's courtroom, at least, it seems to be the norm.

"Fool me once," the saying goes, "shame on you.  Fool me twice, shame on me."

Judge Frost has now been fooled twice.

Temporary Restraining Order and Preliminary Injunction granted.

Execution of Charles Lorraine halted.

 UPDATE - 


The state has already appealed.  Notice of appeal was filed about 4 1/2 hours after the opinion & order was issued.  That's not record time, but it's pretty fast.

Lorraine LI TRO