Heading for the Charnel House

OK, so maybe they did find veins.  Turns out it's contested.  Regardless, they'll check again before they try to kill him.  At least for the moment, the idea is to go with Plan B rather than Plan C.

And go they're intending to do.  Ronald Phillips is to die next Thursday, November 14, at the hands of the state of Ohio.  I can't say it's a surprise, but it's a disappointment.  Alan Bohnert, an Assistant Federal Public Defender, nailed it.

Close enough for government work is not acceptable in applying this death penalty protocol

Unless, of course, it is.  

Judge Frost signed off on it.  Not because he thinks Ohio's got it right, but because Phillips couldn't show, finally, that Ohio can't be trusted.  

This is not to say that the question of the new protocol’s constitutional propriety is conclusively resolved. The Court is not without potential concerns regarding some of the choices that Ohio has apparently made or is contemplating making in its execution plans. But these concerns relate to issues that either do not involve Phillips or that he has elected not to pursue. Those issues will likely become the focus of another proceeding involving another inmate.

Based on the specific arguments that Phillips has made, however, he has failed to persuade this Court that Ohio cannot be trusted, which means that he has failed to persuade the Court that he is substantially likely to prevail on the merits of his claims.

It's a technical point about burdens of proof.  And Phillips, the judge said, didn't meet his.  Frost isn't cavalier about it.  He recites in some detail and case by case Ohio's failures to follow its own rules, its gulling him about whether it would, and then its apparently beginning to follow them.  He acknowledges, considers, deems.  

And then says it's not enough.

Which maybe it is and maybe it isn't.  I wasn't at the lengthy hearings.  I don't know who said what or how the witnesses presented.  I wasn't the one poring through evidence and argument and trying to make sense of it.  I am, after all, neither a judge nor a reporter despite the fact that I judge and I report.  But Frost is a judge and was there and whether or not he's right, he has the robe and the role and it's his perception and decisions that count.

And it was a mess.

“Are you lying now or were you lying then?”

Defendants’ counsel began his November 4, 2013 closing argument with this question, which he stated was inapplicable to the inquiry this Court must undertake in regard to Phillips’ motion for a stay. Phillips disagrees, targeting recent testimony and other evidence with often conflicting prior testimony and other evidence. The entire premise underlying Phillips’ stay request is that Defendants cannot be trusted to implement Ohio’s protocol in a constitutional way; in fact, Phillips argues, the new protocol is inherently unconstitutional. But although both sides agree that the stay request essentially comes down to an issue of trust, the cases they presented at the hearing often could not have been more unrelated. At times it seemed as if Defendants were defending against an entirely different case than the one Phillips was pursuing, which too often resulted in unnecessary argument and testimony on wholly irrelevant issues. . . .

First, review of Phillips’ motion alone would almost invariably mislead anyone conducting such an inquiry into thinking that Phillips’ stay request involves claims and arguments that either the circumstances of the plan for executing Phillips have mooted or that Phillips has elected not to pursue. Phillips filed his motion approximately thirty minutes after Defendants had filed a notice indicating that they would be utilizing intravenous administration of midazolam and hydromorphone to execute Phillips. (ECF No. 338.) Counsel for Phillips had therefore devoted considerable time and pages to arguing points that the notice rendered irrelevant. Rather than delay proceedings by taking time to re-draft the motion, counsel understandably proceeded to file the document with the last-minute addition of a footnote recognizing the timing issue and suggesting that not all of the motion was relevant. During the course of the hearing, Phillips then narrowed the scope of his arguments for a stay based on the clarified circumstances provided by the notice and in light of the evidence presented.

Second, anyone who watched the entirety of the Phillips’ stay hearing or who reviews the hearing transcript would perhaps be confused by the lack of focus that pervaded much of the proceedings. As suggested above, the parties–particularly Defendants–presented hours of testimony on issues that had become moot or that Phillips’ motion never raised in the first place. Some of this might have been the result of Defendants thinking that they had to build a fuller record on ICS in case Phillips’ execution makes its way to the court of appeals, despite the fact that this Court’s prior decisions fully addressed ICS and the fact that Phillips’ arguments only reached a portion of that system. Much of Defendants’ litigation strategy escapes this Court.

And yet.  Good enough.  Phillips had to prove that they couldn't be trusted.  He didn't.

Nor did he sway the Governor.  Kasich declined, once again, to overrule the Parole Board's unanimous declaration that Phillips ought to be killed.  Childhood abuse? Incompetent lawyers? Acceptance of responsibility and genuine remorse? If the Parole Board didn't care, why would he.

There's more to do, of course.  There's the 6th Circuit and then the Supreme Court.  The Gov could 
reconsider.  The Ohio Supremes could stop it.  They could try and get back before Frost with something else.  But the likelihood of success diminishes by the hour.  The options shrink.

I've been wrong about this stuff before.  Nobody ever really knows what will happen until it's done, and late stage capital litigation can take surprising twists.

But it's probably not too soon to start singing mournful songs, if not for Ronald Phillips, who maybe doesn't deserve our sympathy, then for ourselves in whose name he's to be killed.

   Frost OP 11.07.2013