To Kill in Eleven Hours

Governor Ted recognizes a certain irony in the situation.

So it is ironic, I will admit that. It’s a hugely unusual set of circumstances. But my obligation and I think the obligation of the state is to do everything that we can to observe the law as we understand it. And that’s what we’re doing in this case.

Of course, he's right about what they're doing.  And he's certainly right that the state is supposed to obey the law.  But he's somewhere between disingenuous and outright dishonest when he implies that the whole thing is out of his hands.  It's not.  And he can still fix it.  As I type this, he has just under 12 hours.

I'm talking about Lawrence Reynolds and his impending murder.

You remember what happened.

Reynolds is on death row.  As I explained last week, the prosecutor in his case cheated and the cheating may or may not be why he was sentenced to death, but since we don't know - and can't know - whether he would have been sentenced to die in a fair trial, he must be executed.

They wanted to kill him in the fall, but then the gang that couldn't poison flubbed the murder of Romell Broom.  That bought Reynolds a reprieve until last week.

Last week, though, with just under 36 hours to go before his murder, Reynolds tried to beat the system.  While under 24 hour constant watch, he got hold of an overdose of some pills (they won't tell us which, or how he pulled it off).  Another reprieve while they took him to the hospital to ensure that he would soon be healthy enough to be murdered.  Therein lies the irony Governor Ted recognized.

The question I asked last week was what, exactly, we're doing when we bring the almost dead back to life so that we can kill them.  What's our goal?  Why do we perform this farce?  Is it simply so that we can have the pleasure of the murder?  So that the relatives of the victim who are so inclined can have the pleasure and satisfaction of watching another killing?  Is it just for the show?

So the prison guards at the Southern Ohio Correctional Facility in Lucasville keep an eye on Reynolds and record a minute by minute log of his activity (2:43 - had a cup of coffee; 2:47 - peed out a cup of coffee); so the friends and the lawyers and the reporters gather round; so the family of Loretta Mae Foster readies itself to watch a murder; so the execution team prepares to commit one, and so Governor Ted continues to let it happen while being bemused by the irony.

Wake up and smell the hemlock, Ted.  You can stop this.  If it seems ironic to you that we saved the life of man who wanted to end it so that we can kill him when he wants to live.  If that just sounds dumb.  If it makes a mockery of the whole thing.  If it says this is a farce and you're just Curly, Moe, and Larry.  If he's not dead yet because you won't let him be because he has to be made to die on your schedule, Ted.

If it's just a game.

And if it sure looks like the answer to all those ifs is, "Yes," as it does.

Then it's time for Methodist Minister and prison psychologist Governor Ted to step up.

Because you can stop this nonsense with the stroke of a pen.  

Commute the sentence.  That'll teach him.  And wash the blood from off the land.
And all of us.

Eyes Wide Open

I've said before that when you're doing death penalty work, any time the government doesn't get to murder your client, that's a win.  Pretty much everyone doing this work understands that.  And we all shake our heads and think how perverted and offensive that is as a standard.  But it's where we are.  We cheer death by natural causes - or even unnatural ones - as we cheer life without hope sentences because the state has been deprived of its pound of flesh.


Didn't quite happen with Lawrence Reynolds whose condition has reportedly been upgraded from "serious" to "stable" and who is showing "signs of consciousness."


That's what we learn from Julie Walburn, spokesperson for the Ohio Department of Rehabilitation and Correction, quoted in the Cuyahoga Falls News Press.


It seems Reynolds was found unconscious in his cell at the Ohio State Prison in Youngstown around 11:30 Sunday night.  Assuming the rest of what they say is true, he overdosed on some pills.  As of this writing, they haven't said what sort of pills or how he happened managed to get them, but Walburn says they're investigating.


Ya think?


Meanwhile, Governor Ted has issued a reprieve.  See, they have to get him healthy enough to kill.  One week.  That should do it.  The murder is now scheduled for March 16.


That's not soon enough for Denise Turchiano.  She's the niece of Loretta Mae Foster, the woman Reynolds killed and she is, well, pissed seems to get at it.  (The News Press says she "reacted in anger and disbelief.")  How dare they?  How dare he?  Turchiano was planning to watch Reynolds die.  She wanted to see it.  And he almost deprived her of that - what? - pleasure?


And that, I guess, is why anytime the state doesn't get to conduct the murder, it's a win.  Because it's a defeat for the forces of raw vengeance.  Because it means our worst instincts don't prevail.


I have some sympathy for Turchiano.  I understand her anger at Reynolds.  I understand why she'd want to see him killed.  If I were in her position, I might want the same thing.  But if the death penalty exists to give Turchiano the satisfaction of watching a murder, then there's something about the system that we aren't mostly willing to acknowledge - and it's a pretty darn ugly thing.


Because, really, if it's not just that Reynolds needs to die, but that he needs to be killed, and if it's especially that Turchiano needs to/wants to watch him die.  Then it is about the spectacle.


I've said for some time that if we're going to be in the killing business, we should admit what we're doing, acknowledge the equivalence principle. 


If Reynolds tried to commit suicide Sunday night, and DRC isn't quite willing to admit that's what he was doing, then killing him next week (or whenever) won't really be much, will it?  Maybe he wants to die.  Maybe he just wants to cheat the state.  But a peaceful death obviously won't be a horror for him.  So why must we save his life in order to take it unless it's for spectacle, unless it's for Turchiano.  And if that's the only point . . . .

Back in September, when Ohio flubbed Romell Broom's execution, I wrote this.

Either we give up state murder, acknowledge once and for all that the death penalty, no matter how cosmetically attractive we try to make it is just another killing, unnecessary, unfair, uncertain. Or we embrace the horror, admit that we torture people to death at least some of the time and acknowledge that we're just fine with it.

We can rent out Yankee Stadium (it's new and shiny) and line the bodies up. We can set lions on them. Or have them gnawed to death by rats. Pay per view. It's better than pro wrestling.

When Florida killed Ted Bundy, there were cheering crowds outside the prison.  Perhaps they were tailgating.  Perhaps they were us.  And that suggests that we need to do some rethinking - about who we are, and who we want to be.

Ties Go to the Grim Reaper - UPDATED

As I start to type this, Lawrence Reynolds has, it seems a safe bet, just about 36 hours left to live.


At 10 a.m. on Tuesday, employees of the State of Ohio plan to strap him to a table, attach IV tubes to his arms, and inject him with a massive does of thiopentol sodium, a barbiturate.  If all goes according to plan, around 10:30 a physician will certify that Reynolds has been killed.  The cause of death will be listed on the death certificate as "homicide."the murder will be complete


Aside from a few comments about impending executions and the demonstrated incompetence of Ohio's execution team, I haven't written about Reynolds.  I've never represented him.  I've never met him.  He's not quite faceless of course.  There's a scruffy beard and half smile as he stares at the camera in his official DRC photograph.  But I have only guesswork about the man.

Reynolds is an alcoholic.  He killed, there seems to be no question about it, Loretta Mae Foster, an apparently kindly and well-loved 67 year old neighbor and stole money from her purse to feed his addiction.  He'd be a fine example for Carrie Nation.  He had a tough background.  He has apologized for the murder and consistently expressed remorse, though the prosecutors don't believe the remorse genuine.  


With all respect to both Reynolds and, especially, Foster, none of that is particularly noteworthy.  We see those same things all the time in these cases.


More unusual, certainly in Ohio, is that lead counsel had been on the case just 2 1/2 weeks when they began picking the jury.  No competent criminal defense lawyer should agree to such a timetable,  frankly, none would.  Still, lead counsel in Reynolds' case did.  That should make you wonder, give pause.


But there's also this, and it's where I wanted to go and what I wanted to talk about.  


When it affirmed the conviction and death sentence back in 1998, the Ohio Supreme Court explained that the prosecutor committed misconduct during the sentencing phase of the trial, that it's impossible to determine whether the misconduct made a difference in the sentence, and that therefore the sentence should stand.


Here's the court's summary of what happened.

The state opened the penalty phase by calling Foster’s son, Michael Foster, as a “victim-impact witness.” Foster testified that he was an only child and that his father had passed away many years earlier, that his mother was from a large family and her house had been the gathering place for the family, and that his mother had touched “everyone’s life” and been a special part of their lives. When the prosecutor asked him to describe the effect his mother’s death had had on him, Michael became distraught and was unable to answer. He indicated that one of his daughters was getting married in July and that his mother had been looking forward to the wedding. Michael’s other daughter had once lived with Foster for a period of time. He testified that both granddaughters missed their grandmother very much.

The prosecutor incorporated the victim-impact testimony into his closing argument:

“He told you as best he can the effect this crime has had on himself and his family, and it is an extended family of Mrs. Foster. Considerations of the effect of a crime upon the victim, the victim’s family, are things you can think about in making a decision here. And I urge you to do that.” (Emphasis added.)

The misconduct was in the part of the prosecutor's statement that the court italicized.  Here's what the court said about it.

In his eleventh proposition of law, Reynolds contends that the prosecutor’s statement cited above amounted to misconduct. We agree that the prosecutor’s remarks imploring the jury to consider the effect of the crime on Foster and her family were likely improper. It is impossible to determine the weight given the victim-impact evidence by the jury. We conclude that the outcome of the penalty phase would not clearly have been otherwise but for the imploring of the prosecutor.

You can't argue with the logic, I suppose.  If it's impossible to know if the misconduct made a difference, you can't say that it clearly made a difference.  And it has to have "clearly made a difference because trial counsel - the lawyer who'd been on the case for 2 1/2 weeks - didn't object to the misconduct.  


Why not?  Was that OK?  No.  The court explains.

In his first proposition of law, Reynolds contends that counsel’s failure to object to the victim-impact evidence or the prosecutor’s use of it constituted ineffective assistance of counsel. Even though counsel should have objected, Reynolds is unable to show prejudice. There is no reasonable probability that the outcome would have been different. Accordingly, counsel’s failure to object to the victim-impact testimony does not rise to the level of ineffective assistance of counsel.

So, there you have it.  But let me do it in simple English.


The prosecutor told the jury that when they were deciding whether Reynolds should be killed, they should consider the effect of the crime on Foster's family.  That's wrong, and it might have made a difference in the sentence, but we can't tell.  Trial counsel should have objected, but didn't.  That was a serious mistake, but since the objection probably wouldn't have changed anything it's really OK.


What's that?  It still sounds too legal.  You want an even simpler summary?  OK.  The prosecutor cheated.  We don't know if the cheating is why Reynolds was sentenced to die.  And we don't care.


And so, he'll be killed on Tuesday.  Murdered by the great State of Ohio.  Because maybe the jury would have wanted that even if the prosecution hadn't cheated.


Or maybe not.  


UPDATE


As the anonymous commentor noted, Reynolds was found unconscious in his cell late last night.  Today, Governor Ted issued a one week reprieve so they'll have time to get him healthy enough to kill.  The murder is now scheduled for next Tuesday morning, March 16.

Lone Stars and Buckeyes

A FINE ROMANCE

 

As you know, on Thursday, Kevin Fine, Judge of the 177th District Court in Harris County (that's Houston) Texas, ruled that Article 37.071 of the Texas Code of Criminal Procedure, the statute that sets out the procedures to be followed in the trial of capital cases, was unconstitutional.  If the ruling were to stand up, Texas would be unable to seek the death penalty for John Edward Green, Jr. who is charged with capital murder for the killing and robbery of Tina Vo.

They were back in court Friday.  The  state filed motions for reconsideration and to try the case under Article 37.071 as if the court had denied the motion to find 37.071 unconstitutional.  The judge said that he would rule on those motions Wednesday.

That's just the procedural folderol of the day.  We'll catch up on all that Wednesday when the judge rules.  What was far more interesting today (except perhaps to Mr. Green, the family of Ms. Vo, and maybe the various lawyers involved in the actual litigation), was the explanation Judge Fine gave of Thursday's ruling.   

Mark Bennett provides the transcript, and some careful analysis.  My focus is a little different.  Anyway, here's the transcript.  Some excerpts and comments below.

Green Fine Transcript 2

First, Judge Fine made clear that the holding was limited and narrow.

My holding with regard to the Defense motion is limited only to the due process claim that 37.071 has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons.

That's clear enough. What's interesting, though, is how he got there.

He found somewhere a direction from the Supreme Court that, as a trial judge, he is to be a "gatekeeper."

All I can do, as this issue has been raised, is go by what guidance there is; and the only guidance that I have found is that provided by the United States Supreme Court that places a duty on trial courts to act as gatekeepers in interpreting the due process claim in light of evolving standards of fairness and ordered liberty.

Clearly I have been charged with that duty.  So I am now charged with interpreting such evolving standards and I'm called upon to assess the current state of our society's standards of fairness and ordered liberty in light of what we as a society now know.  That that is that we execute innocent people.

Really, it's one hell of a claim.  And what follows from it is, perhaps even more impressive.  The people, he concludes, don't think the death penalty is worth that cost.

And because the Constitution protects us all, the question to be asked and answered in resolving this issue is whether we as a society -- we have to look at ourselves.  Are we willing to allow our sons, our daughters, our brothers, our sisters, our friends to be the sacrificial lams should they be wrongly accused of a capital offense and then be executed.

I don't think there is -- there may be some people out there that would say they're willing to let their son die so that the State of Texas can have a death penalty, but I think those persons would be few and far between.

I find that the greater majority of our society would not be so willing to allow the execution of their friends and family or to be the sacrificial lambs so that the State of Texas can have a death penalty.  I think that the changing and evolving standards of fairness and ordered liberty are such that in light of the fact that we have overwhelming evidence that we are, in fact, executing innocent persons, I don't believe that our evolving standards are at the point where we're willing to sacrifice even those that have criminal records and even those that come from the Fifth Ward or the Ninth Ward of New Orleans or the Fourth Ward or the Third Ward of Houston.

I think society has begun to take a look within itself, and I think the proper question to be asked is just that  Are we willing to let our own be the sacrificial lambs?  I don't think society is willing to do that.

It's terrific sentiment.  It's also, I suspect, terrifically naive.

Oh, I don't think there are many folks who'd be willing to sacrifice their own innocent children in order for Texas to have a death penalty.  But the odd abstract innocent person, someone else's child, sure.  Not mine, but yours.  After all, the polling data make clear that most people believe we execute innocent folks at least occasionally and most of those people support the death penalty. 

Still, every time a judge stands up and says, "enough," every time anyone does, that's a step.

Remember the old song:
One man's hands can't tear a prison down.
Two men's hands can't tear a prison down.
But if two and two and fifty make a million,
We'll see that day come round;
We'll see that day come round.

LET'S CALL THE WHOLE THING OFF

In 1988, Anthony Klann was murdered in Cleveland.  Ultimately three men were charged with the killing: Edward Espinoza, Michael Keenan, and Joe D'Ambrosio.  Espinoza testified against the others in exchange for a lesser sentence.  Keenan and D'Ambrosio were sentenced to die.  In March 2006, a U.S. District Court Judge Kathleen O'Malley in Cleveland ordered a new trial for D'Ambrosio based on evidence that the prosecutor had improperly concealed from the defense.  Had the defense had that evidence, O'Malley concluded, would have been less likely to convict him.  The 6th Circuit agreed.

The state's case, already perilously weak, suffered another crippling blow when Espinoza died.  Thursday, while Judge Fine was declaring the Texas death penalty procedures unconstitutional because they didn't do enough to ensure that the innocent would not be sentenced to die, Judge O'Malley was ruling that the State of Ohio could not retry D'Ambrosio.  Their own misconduct was just too great.

Friday, the Cuyahoga County Court of Common Pleas dismissed the charges against D'Ambrosio.

Then there's Lawrence Reynolds.  You'll remember that he was next up in the fall when Ohio failed to kill Romell Broom.   Governor Ted put the killing off until March.  It's here.  They're planning to murder him Tuesday morning.

We're making progress.  But we're not there yet.

The Execution Express

So now there's a new plan.

Let me back up to provide some context.

Ohio, like every state that kills with lethal injection (which is now every state that kills) has always used a series of three drugs:

1. Sodium thiopentol, a fast acting, short term barbiturate
2. Pancuronium bromide, a muscle relaxant that prevents all voluntary movement and, effectively, paralyzes
3. Potassium chloride, a salt that stops the heart

If all goes well, the barbiturate puts the condemned inmate into what's knows as a surgical plane of anethesia where he (or she, but only rarely she, and never in this modern era in Ohio) will feel nothing. The muscle relaxant then keeps the inmate still while the potassium chloride (which would otherwise result in all the body's muscles clenching and make the inmate look gruesome and agonized while being killed) actually kills.

The evidence from surgery and from executions around the country (and from Ohio, though this is less informative than some of what we know from other states) is that all sometimes does not go well. If the inmate doesn't get enough of the barbiturate - or if it isn't actually delivered into a vein, he could die a horrible, agonizing, excruciatingly painful death. It would be torture in any ordinary sense of the word.

Ohio has an additional problem, though. Three times in the past three and a half years, out execution team (the official state killers) has demonstrated that it isn't competent to insert IV lines into death row inmates in the first place. We can't even get the drugs running, let alone running right.

Most recently, of course, that was what happened with Romell Broom. For now, Broom lives. One of these days, they hope to try again to kill him.

But it was obviously a mess, and Governor Ted and DRC Director Terry Collins decided to come up with a better plan. While they've worked on it, Ohio's string of monthly killings has been on hold. (You can read about all of that to date at a number of places including a half-dozen or so prior posts on this blawg.)

So now we have a plan. Announced today, in an affidavit by Terry Collins and made part of a filing in federal court. It's in two basic parts.

For the first change, going forward, pancuronium bromide no longer will be used as part of the lethal injection process. Also, potassium chloride no longer will be used as part of that process.

They are, that is, abandonin three drugs. From now on, it's just thiopentol. A lot of it. And more as needed. That's how they euthanize dogs and cats. Everyone except executioners and those who work with them has been saying for several years it's the smart thing to do. But nobody actually knows how it will work, since it's never been done on people.

There's some indication that if you measure death by use of an EKG, it could take 30 or 40 minutes to kill that way. If you don't use an EKG, thiopentol can kill in, perhaps, under 10 minutes. Some states actually use an EKG. Seat-of-the-pants Ohio isn't one of them.

In any event, and assuming this is a really good idea, it doesn't do a thing to resolve the Romell Broom problem. If they can't get the IV in, they can't pump any drugs.

What to do?

That's the second part of the new plan. It call for a fall back, a back-up, a plan B. Until now, the procedure has been that if they can't get the IV lines going, they'll huddle and decide what to do next. No longer.

A second change has been made to the lethal injection procedure. As a back-up, if an IV site cannot be established or maintained, then an intramuscular ("IM") injection may be used. That injection would consist of 10 milligrams ("mg") of midazolam and 40 mg of hydromorphone . . . .

Nobody's ever tried this as a killing method, either. Nobody knows how it will work. Nobody knows what will happen. And, of course, there's no particular reason to think that our incompetent killers will be able to effect this.

But, and this is part three of the new plan, it will be in place in time for the next scheduled killing. No delay, no confusion.

His name is Ken Biros. Ohio wants to murder him on December 8. Terry Collins says they'll be ready to do that. And it kind of makes you wonder.

Here's what Ohio - in its best effort to become Texas - plans to do:

• December 8 - Ken Biros
• January 7 - Abdullah Kazim Sharif Mahdi
• February 4 - Mark Brown
• March 9 - Lawrence Reynolds
• April 20 - Darryl Durr
• May 13 - Michael Beuke
• June 10 - Richard Nields

And you can look forward to July, August, September, and October, too, I'd imagine. There's a train here, and it's been sidelined for a bit. But Governor Ted and Terry Collins and the Ohio Supreme Court, they're ready to start stoking up the engine again (or however that worked on the old steam locomotives).

See, here's my question: Did they come up with this plan and this plan B because they're the best they could do? Or did they come up with them because they're the best they can do and still get someone killed in a couple of weeks?

And will it work? Will they be able to implement a new plan when they couldn't manage the old one? And what will the courts do?

And what the hell was the rush?

You know, this was a real opportunity to think about maybe reconsidering the whole idea of murdering people because they murdered, a chance to consider whether maybe there are better ways to deal with anger and frustration, a time to decide that maybe we should be better than the people we want to punish.

Opporunity lost.

Let the killing begin.

Or not.

As Tiny Tim didn't say, God help us, every one.

PERSPECTIVE: The Killing (To Resume Soon?) State

What's next?

We've got a breather here, though it may not be much of one. Officially, it's two men long and lasts only until December 8 when Ken Biros is still supposed to be killed. Doug Berman's calling it a "mini-moratorium," and if it really only lasts that long it's hardly worthy even of that name.

Romell Broom's re-execution (a term you don't find many opportunities to use) is on hold until after Judge Frost rules after a hearing at the end of November. Ken Biros (scheduled to be killed in December) and, it now appears, Lawrence Reynolds (March 9 is his new execution date) are going to be part of that hearing, too, though only Broom will have the claims about trying to kill him twice.

While everyone prepares for those hearings and whatever comes out of them, litigation on other fronts is ongoing.

The Ohio Supreme Court today ordered the Attorney General to respond to Broom's petition for a writ of habeas corpus. Broom asked that court to prohibit further efforts to kill him. Don't hold your breath. On the other hand, we're in something very close to uncharted legal waters here. Remember, the only other time an execution failed so badly that they just gave up one day was 16-year-old Willie Francis in Louisiana in 1946. In that case, and after the Supreme Court gave the go-ahead, in a decision with no serious precedential value today, they killed him.

Then there's Lawrence Reynolds. The Sixth Circuit's 2-1 decision yesterday to order a stay and remand the case for a hearing before Judge Frost is only partially mooted by Strickland's reprieve. The reprieve effectively moots the stay unless Judge Frost takes till after March 9 to decide, which is possible but hardly the sort of thing anyone would be counting on. On the other hand, the remand for hearing before Judge Frost remains effective. So Reynolds is back - or is he?

Press reports indicate that before the Governor granted the reprieve, Attorney General Cordray had filed in the U.S. Supreme Court to lift the stay imposed by the Sixth Circuit. As of this writing, the Supreme Court website doesn't have any indication of that on its docket. But Law Dork, in this important post includes a link to the AG's filing. And according to the New York Times,

In a statement issued late Monday, Mr. Cordray said the appeal would continue despite the governor’s decision to postpone the executions.

Law Dork points out (here) that other comments by Cordray indicate that he's an enthusiastic supporter of executions whose main concern about the death penalty is that we don't kill enough people. So it seems he's pushing for broad authorization to shut down the whole LI debate in Ohio. What's interesting is that if the Court were to agree to hear some broad-based challenge it would probably grind executions in this state to a halt for a while. So maybe he just wants a quick ruling that the Sixth Circuit had no right to grant a stay, which would probably end other Sixth Circuit stays based on Broom, but might have no broader consequence.

In any case, and I should note that I have no particular track record on these predictions, it seems unlikely that SCOTUS will step in to declare unproper a stay which has been effectively mooted. In fact, it's not clear that the Court would really have the authority since there's no longer a case or controversy on that to resolve.

That's just what's readily going on in the courts.

Meanwhile, Alan Johnson has a story in the Columbus Dispatch on just what is cruel and unusual punishment in violation of the 8th Amendment in which he quotes a few of the comments to earlier stories. It's ugly out there.

And then, of course, there's the ongoing study by Ohio officials about how to do things differently. Well, maybe there's a study. Strickland says that DRC has been working diligently on a back up plan since they failed to kill Broom. There's absolutely no other evidence that it's true, and there's good reason to believe that they've done nothing. Certainly, they've been remarkably quiet about anything they have done. But let's consider.

The reprieves were obviously the right thing to do. It would be, at best, embarrassing to carry out executions while the courts are actually reviewing the question of whether the last execution was so badly screwed up that future executions would be unconstitutional. Of course, Strickland didn't say that was the reason for the reprieves (and maybe it wasn't). What he said is that DRC is trying to come up with a back up plan.

OK, every system should have a back up of some sort. According to Judge Sutton of the Sixth Circuit channeling Cordray's office, the Ohio protocol calls for stopping the execution if they can't make it work in two hours. In fact, the protocol calls for a huddle when and if they decide they're stuck. And it allows them to quit at that point. Essentially, the protocol says, "We'll cross that bridge when we come to it."

But this is a plan about killing. You know, when murder method A doesn't work, go on to murder method B. That's stark. And Strickland says they're making great progress in finding a method of lethal injection that doesn't involve lethal injection:

Since September 15, Department personnel have diligently researched a range of potential back-up or alternative procedures for lethal injection that would comply with Ohio law. Although they have made substantial progress in this regard, more research and evaluation of back-up or alternative procedures is necessary before one or more can be selected. In addition, the selection of a back-up or alternative procedure will require training and other preparation by the Department in order to incorporate it fully into the Department’s lethal injection protocol.

So it's hard to find and hard to implement, but they're making great progress - which I assume means they've decided that lethal injection by insertion of a urinary catheter is off the table as an option. At least I hope so.

In any event , there's now at least and at last there's some acknowledgment that our system needs help. But it needs it quickly. By insisting in his reprieve order that Biros should still be killed in December (Judge Frost may have something to say about that), Strickland has put a strict limit on how long they can take to find and implement a new method.

An AP report from this morning says that they're

considering using lethal injections into inmates' bone marrow or muscles.

The report also says "that everything is on the table," which pretty much means that nothing is. (Maybe they will result to the catheter.)

It keeps coming back to this: The desire to kill runs up against the difficulty in killing. I know I'm being naive here, but you gotta ask if it's worth the effort. In that context, it's important to note that some politicians are willing to jump into the fray and take a real position.

Jennifer Brunner, the Secretary of State who's running in the Democratic Primary against Lee Fischer in the hope she'll get to run for the Senate next year, published this piece in the Huffington Post right after the Broom fiasco. The death penalty should be ended, she says, and certainly we need a moratorium. In Massachusetts, Democrats running for Ted Kennedy's seat in the Senate are arguing about who's more sincerely committed to abolition.

And it's not just the Democrats. Travel down to Texas and you'll find Senator Kay Bailey Hutchison, running in the Republican primary for governor against Rick Perry, taking him on over effectively shutting down the commission that was about to hear and review the evidence that Cameron Todd Willingham, executed in 2004, was factually innocent:

I am a supporter of the death penalty, but I also believe that 100 percent of the people who also believe the death penalty is a deterrent think we need to have all of the evidence and all of the technology to assure that when such a punishment is given that we have all of the evidence and the capability to assure that the person is guilty.

I definitely disagree with the governor changing the commission just before the hearing that would perhaps lend some light on the technology that would determine whether arson was a factor.

It's another case where the governor is trying to maintain a loyalty to him but not to the responsibility person on the commission had taken to the people of Texas and our judicial system.

Ya think?

So maybe a tide is turning. Maybe it's time. A little political courage might go a long way right about now.

Start with this: It's not about equivalence. We're not willing to match what they did. Once we abandon that pretense, we can give up the whole killing thing. Murder is murder.

Sometimes it really is that simple.

A momentary pause or a real moratorium? Or maybe just a burp.

Lawrence Reynolds won't be murdered on Thursday. Maybe.

You know the back story. Since May 2006, there have been three horribly botched execution efforts in Ohio. Most recently, the State of Ohio's crack execution team worked at it for two hours on September 15 but ultimately failed in its effort to kill Romell Broom. The state planned to try again a week later, but ultimately agreed that it would do nothing until a federal Judge Gregory Frost held hearings at the end of November. (See here and here, for instance.) Among the key questions:

1. Are Ohio's execution procedures unconstitutionally flawed as written?
2. Is Ohio really as incompetent as it seems to be?
3. Regardless of what's in the written protocols, does Ohio's execution process entail a "demonstrated risk of severe pain" sufficient to make the system unconstitutional?

The hearings will explore these questions for Broom and also for Ken Biros (who was going to get a hearing regardless).

The problem is that there are two other men Ohio wants to kill before the hearing occurs. Lawrence Reynolds on October 8 and Darryl Durr on November 10. What about them? Good sense suggests that their killings should be stopped. Even if you think the state should be in the murder business, it's reasonable to say that they should stop killing people until they've determined how to do it properly. But good sense has never had much to do with this.

Reynolds asked the Ohio Supreme Court for a stay. The state opposed the request. The court denied it. (Documents here.) Reynolds asked the 6th Circuit court of appeals for a stay. The state opposed the request. This morning, in a 2-1 decision, the court granted it and ordered Judge Frost to hold a hearing. Presumably, that will be part of the Broom/Biros hearing of November 30.

But don't let's go popping the champagne corks just yet.

As the Columbus Dispatch notes, the state can ask the entire 6th Circuit to review what the panel did. And the state can ask the Supreme Court to reverse the panel decision. Will the state ask? I don't know. What will happen if they do ask? I don't much like my guesses, but the truth is, I don't know.

Guarded hope for Reynolds seems to be the watchword.

Which brings us to Darryl Durr and the other men with execution dates.

Judge Sutton, who voted against stopping the Reynolds killing, noted that granting his motion has a broader consequence:

The last problem with Reynolds’ motion for a stay is that there is no way to grant it
without effectively imposing a moratorium on implementing the death penalty in Ohio.

Sutton found that problematic. I find it encouraging.

One can only hope.

UPDATE

I'm told that the state has asked or is about to ask the Supreme Court to jump in and lift the stay the Sixth Circuit imposed this morning. More news as it develops.

Will they sterilize the needles now that they know they may not actually kill anyone?

So they think torture is OK.

Without explanation, without comment, without dissent, and without a shred of apparent concern or human decency, the Supreme Court of Ohio today refused to stop the murder of Lawrence Reynolds. The court thus proved again the applicability to it of Justice Jackson's words about the U.S. Supreme Court.

We are not final because we are infallible, but we are infallible only because we are final.

There were two entries, issued simultaneously here. I reproduce them in their entirety.

MERIT DECISIONS WITHOUT OPINIONS

2009-1740. In re Reynolds.
In Habeas Corpus. On petition for writ of habeas corpus of Lawrence Reynolds and respondent’s motion to dismiss. Motion to dismiss granted. Cause dismissed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O’Donnell, Lanzinger, and Cupp, JJ., concur.
O’Connor, J., not participating.

MOTION AND PROCEDURAL RULINGS

1996-1956. State v. Reynolds.
Summit App. No. 16845. This cause came on for further consideration upon the filing of appellant's motion for stay of execution scheduled for October 8, 2009.
It is ordered by the court that the motion is denied.
O’Connor, J., not participating.

That's it. Cold and spare. I suppose when you say that it's OK to kill someone knowing that torture is a real possibility you really don't want to explain why. But you know, they ought to own up to it.

The good news is that there's plenty of time for intervention. The bad news is that time is running out. There remains the 6th Circuit. SCOTUS, perhaps. And the Governor.

It seems a safe bet that all the others wished the folks in Columbus had stopped this, so that they wouldn't need to go on record. None of them want much to stop it or let it go on. None want to be part of this legal and moral mess. But they all are. Whether they speak to this particular case at this particular time or not. They brought us this far.

They signed off on this killing before. They've signed off on others. They've said, some more explicitly than others, but they've all said it, that the details don't matter. It's all close enough for government work. Your government. And mine. At work.

Killing Them Not So Softly

Now what happens?

As I start to type this, the next attempt at aggravated murder (let's just call it what it is) is scheduled to occur in nine days, next Thursday morning. I don't know if it will happen. Nobody does. Nor do I know if it will succeed.

You know the backstory. On September 15, just two weeks ago, the State of Ohio tried in, er, vain to kill Romell Broom. After two hours and some 18 actual failed needle jabs, they gave up temporarily because they couldn't figure out how to gain peripheral vein access. (Details and commentary here and here and here.)

Although prison officials were "seeking advice," they apparently had no plans to discuss what happened. Nor does it appeal that there has been any review of the failure or debriefing of the team. Still they intended to do it again the next week. Terry Collins, the optimistic Director of the optimistically named Department of Rehabilitation and Correction remains confident. He told the New York Times,

“I won’t have discussions about ‘what if it doesn’t work next week’ at this point,” Mr. Collins said, “because I have confidence that my team will be able to do its job.”

He may be the only one with that confidence. Broom's lawyers obtained an agreed stay of the second try from a federal judge. Agreed is, for purposes of this discussion, the key word. It means that the Ohio Attorney General signed off on it. As in it's fine with him. As in we should take the time to investigate and work out questions while we decide how to go forward with killing Broom.

The formal order stopping Broom's execution has been extended until November 30. Even if it's lifted that day, it will almost certainly be at least several more months before the state takes another, er, stab at killing him - if it ever does. That may bring some small comfort to Romell Broom. I don't know that it does anything to make Lawrence Reynolds feel much better, though.

Yesterday, lawyers for Reynolds filed new requests for stays and for opportunities to litigate the significance of the Broom fiasco in the Ohio Supreme Court and the Sixth Circuit (no free link, sorry). Broom's claim is simple, poignant, and correct: With three seriously botched efforts at obtaining veinal access in three years, Ohio has demonstrated itself singularly incapable of providing a constitutionally and legally humane death. The State has not yet responded in the Ohio Supreme Court (it has until Thursday). It has responded in the Sixth Circuit, making, in part, this fantastic claim:

[T]he postponement of Broom's execution does not suggest that there are problems with Ohio's procedures or that Reynolds' execution cannot be accomplished lawfully and humanely. Second, Broom's execution was not "botched." As explained by Appellees previously, administration of the lethal chemicals had not even begun.

Got that?

Everything was fine with Broom. Our killing system is Jim-Dandy-peachy-keen-A-OK golden. You can bet your life on it. And since the Broom killing went so well, there's certainly no reason to think there will be problems murdering Reynolds. You know, we can't have screwed up the killing because we never got to it.

Is your head spinning yet?

When the state horribly botched the killing of Chris Newton in May 2007 (113 minutes, major problems with veinal access, pretty good evidence that the drugs were leaking from the veins into the arms and, therefore, not working as they should), Ohio officials said the killing went just as it should. Assistant Prisons Director Mike Randall (quoted here) said,

It worked the way we hoped it would in this particular case.

The Governor (quoted here) took a similar line:

The procedure worked as it was intended to work.

It was nonsense then and it's nonsense now.

But what happens next isn't nonsense. Either someone (and that means either a court or the Governor) steps in and says to stop and find out why we have so damn much trouble killing people or the killing, and the screw ups, go on.

Reynolds has asked for a halt. It's clear that the next few guys up will. We'll start learning in a week or so what's going to happen.

I'm sounding like a broken record here, but someone has to tell the truth: either we need to stop the killing or we need to acknowledge that we don't care about how it's done as long as it happens.

The idea is supposed to be that we kill these folks to show that we're better than they are. The reality, of course, is that we show we're just the same.

The immediate prospect of being hanged

I'm back. After nearly a week of concentrated brief writing that left little time for sleep and none at all for the blog.

Things have calmed down now with the Broom execution on hold for a few months. The TRO has been extended, at Broom's request and without objection, until November 30. Even if it's lifted that day, Ohio will be unable to go forward with the execution until the Ohio Supreme Court sets a new execution date. This gives us time to step back and gain some perspective. But it also raises serious questions for Lawrence Reynolds and Darryl Durr.

Reynolds and Durr are the guys Ohio plans to kill next. The aggravated murder of Reynolds is scheduled for October 8. Durr's murder is to occur November 10.* That means, if the state has its way with them, that both will be dead before there's a ruling from Judge Frost.

So what? Some would ask. At Crime and Consequences, Kent Scheidegger calls the"pinpricks" Broom experienced a "preposterous basis for further delay." He'd wondered earlier if the arguments against trying again to kill Broom was "the worst argument ever made to a court of law."

Yet it's got legs. Whatever Scheidegger might think, the court seems to be taking it seriously, as does the state. And Ohio's Secretary of State - and candidate for the Senate in 2010 - just published a long commentary that rambles almost as much as some of my blog posts (though mostly without the asides, if you don't count the stuff about her daughter) taking off from the Broom botch to assail the death penalty itself.

And then there's Reynolds and Durr.

Imagine you're Reynolds. You've been told the date you are to die. You've been told how.

Sit there in that cell and wait. You're fine. It's payback time. Two months now. Remember. Six weeks. We'll be watching you. Five weeks. Then we kill you. Kill. Like a dog. Four weeks. We're gonna get you. You'll get yours. Three weeks.

Oh, but hey, it's OK because it'll be painless. We'll see to that. Quick and painless. We know how to do that. We're good killers. And we'll give you a double cheeseburger the night before. Two weeks. October 8.

You half believe and half don't. You're trying to make sense out of this. But you've heard the tales. You know there have been problems. Hell, you've been trying to get some traction on your lethal injection litigation for years. But now this. Now you face the prospect that it's a massive, unintended joke. That they'll put you through it multiple times. That each will be more painful than the last.

While you wait.

In that cell.

The punishment isn't just death, after all. It's the wait and the knowledge, the certainty and the uncertainty. Albert Camus wrote:

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.

He's probably wrong about who you might meet in private life. I've had clients and know of others who did things that would curl your toenails. But it's not supposed to be a sadism contest. We say we're better than that.

It's even worse for Broom, of course than it is for Reynolds or Durr. But he's got a break for a bit. It was Samuel Johnson who observed that "the immediate prospect of being hanged concentrates the mind wonderfully."

Or terribly.

And so, if you're Reynolds, you wait.

And nobody's talking about you.

And you're in that cell.

And they promise it will be painless. And quick.

But how can you believe them?

_________________
*Yes, I know it seems a harsh thing to use the word "murder." But it's exactly right. Ohio Revised Code Section 2903.01 defines the offense of Aggravated Murder (Ohio's only capital offense). There are a number of different ways to commit that offense, but here's the statute's first prohibition:

No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another’s pregnancy.

Well, when they strap you to a table, stick needles in your arms, and inject you with drugs with the specific intent that you will die, that's purposely and with prior calculation and design causing the death of another. And that's Aggravated Murder.