If At First You Don't Succeed, Kill Kill Again

Part I

It's an oddity of prisons that, at least in some states, the prisoners who get the best medical care are the ones on death row.  Don't get me wrong.  It's not like any of the prison medical care is outstanding, but it's often better for the condemned than for the ordinary prisoner whether doing a term or doing life.

As I say, it's an oddity.  But one reason (not one the powers that be will acknowledge, but one reason) is that it's necessary, insofar as possible and despite the irony, to keep the condemned folks alive until they can be killed.  That's not out of any altruistic concern for their welfare.  It's because the whole point of a death sentence is that it ends with a killing.  That's why when someone on death row dies, whether of natural causes or suicide, we speak of cheating the hangman.  And why, in the perverse world of death penalty lawyers, we can see it as a win.

The state didn't get to kill him.
Whoopee!

it's not that we're callous about the death.  It can be devastating to the lawyers who've struggled to save a life, who've developed a strong relationship with their client.  It leaves families and friends bereft, lost.  But damn, we wanted the state not to get its pound of flesh, and they didn't. 

But that's us.  From the state's point of view, for a death row inmate to die by something other than execution is an injustice.  The sentence wasn't to die; that will happen to all of us.  It specifically wasn't death in prison; that's LWOP.  He didn't get his comeuppance.  He was supposed to be killed.  
How dare he die on his own.

So when they catch it in time, they'll patch the person up in time to kill him.  Last minute suicide attempts aren't even all that infrequent, and sometimes (think Billy Slagle) they aren't just attempts.

But when they are just attempts, just as when the dread disease comes along, well, then it's time to save the life.  So it can be taken.

Part II

When I speak about the death penalty to high school students, there's one question I'm always asked.  

If he doesn't die, can they try to kill him again?

My answer was always, 

Sure.  The sentence was death, not attempt to kill.  So they get to keep trying.

And then I'd tell about William Kemmler, the first electric chair execution.  He didn't die right away, so they turned the chair on again.

Finally, everything was in order. The dynamo in the machine shop was running at a steady speed and the meter on the wall read a little more than 1,000 volts. His task completed, Warden Durston stepped back from the chair. Turning to the witnesses, the warden asked, "Is all ready?" No one said a word. Kemmler raised his eyes and turned his head just enough to feel the warm sunlight on his face. Then Warden Durston gave the signal. "Good-bye, William." George Irish, a New York state government clerk who "had always been good at that kind of work," is thought to have pulled the lever. Later at the Osborne House, he bragged about having thrown the switch
.
A click was heard and Kemmler's body strained against the leather straps, every muscle in full extension. Kemmler's eyes bulged but did not otherwise move. His body remained rigid except for the right index finger, which contracted, curling so tightly that it dug into the flesh of the first joint, causing blood to trickle onto the arm of the chair. 

Next, the condemned man's complexion turned ashen. "Death spots" appeared on his skin. After seventeen seconds, Dr. Spitzka shook his head and declared, "He is dead." Warden Durston gave the signal to stop the flow of electricity. Dr. Alfred P. Southwick, a Buffalo dentist who was an early proponent of the electric chair, solemnly declared the first execution by electricity a grand success, saying, "There is the culmination of ten years' work and study. We live in a higher civilization from this day." The witnesses, who had averted their eyes, now turned back toward the chair. But their sighs of relief turned to gasps of horror as they faced Kemmler's still-twitching body. "Great God! He is alive!" yelled one. "Turn on the current," screamed another. "See, he breathes," hollered a third. "For God's sake, kill him and have it over," shouted a newspaperman, who then fainted. District Attorney Quinby clutched his stomach and ran for the door; once outside, he fainted.

Drs. Spitzka and MacDonald calmly stepped forward to examine the body. Warden Durston began to unscrew the electrode attached to the skullcap. Spittle dripped from Kemmler's mouth as the condemned man continued to breathe, his chest rising and falling convulsively. The medical men, present to pronounce death, listened for a heartbeat and, finding one, signaled Durston to reconnect the electrode on Kemmler's head. Turning toward the warden, Dr. Spitzka shouted, "Have the current turned on again, quick—no delay." Warden Durston ran to the door and sounded the bell twice, which was the signal to the men in the machine shop room to turn the current on again. Once more the click, and again Kemmler's body, like a toy soldier, snapped to attention. The scene grew more gruesome as the dynamo, now running at top speed, sent 2,000 volts through Kemmler's body. On the other side of the prison, in the dynamo room, convicts were pressed into service, holding the new leather belt on the dynamo; it hadn't been stretched properly before the execution, and it almost fell off several times. Froth oozed out of Kemmler's strapped mouth. The small blood vessels under his skin began to rupture. Blood trickled down his face and arms. Twice Kemmler's body twitched as the current was switched on and off. The awful smell of burning flesh filled the death chamber. Kemmler's body first smoldered and then caught fire.

When the current was finally turned off, Kemmler's body went limp. This time he was dead—there could be no doubt of that. From the moment he first sat down on the chair until the electricity was shut off the second time, eight minutes had elapsed. Kemmler's blackened, smoldering body was left strapped to the chair as the horror-stricken witnesses were marched out of the death chamber into the stone corridors of the prison. A "pungent and sickening odor" followed them. 

Or I'd talk about Willie Francis. The first attempt to kill him in the chair didn't take.  He spent the next year litigating whether they could take a second shot at him.  Eventually, the Supreme Court said they could.  And they did.

But then along came Romell Broom.  Minions of the State of Ohio tried for two hours to kill him before the governor called a temporary halt.  That was three years ago, and temporary hasn't begun to run out.  Ohio still wants to kill Broom, but there's nothing much happening on that front at the moment and your guess is as good as mine about whether they'll ultimately be allowed to try again.

Part III

The good news is that we're a seriously decent country, humane, wholsome.  Unlike those countries of, say, what Shrub referred to as The Axis of Evil.  Places like, say Iran.  From where we learn about Alireza M.

The 37-year-old man named as Alireza M was 'put to death' in the Islamic regime's Bojnourd prison last Wednesday for drugs offences.

After 12 minutes, he was certified as dead and taken to the prison morgue.

But when his family went to collect his body the following day, they noticed he was still breathing and rushed him to hospital.

. . .

Once officials were told Alireza M had survived, they put him under armed guard at the hospital to await a second execution.

A judiciary official told the state media: 'The verdict was the death sentence, and it will be carried out once the man gets well again.'

Boy, I'm sure glad we wouldn't do that sort of thing here.

Can't Kill Him Yet - The Update

As I promised here, I'm posting an update based on Judge Frost's opinion granting in part and denying in part the state's motion to dismiss Romell Broom's lawsuit regarding last September's failed attempt to kill him.

The opinion is, frankly, suitable only for the nerdiest of lawyers.  It is, like the various claims, arguments, and relevant prior cases, convoluted.  

Broom Order on Mot. Dismiss  

So let's cut to the chase.

Broom argued that Ohio may not make a second attempt to murder him.  It would be cruel and unusual punishment, it would violate the protection of the Double Jeopardy Clause.  It would be unconstitutional.  Maybe, maybe not.  But Broom makes the point in a civil rights action and federal law says he can't do it that way.  If granting Broom what he asks for would mean the state could not kill him, he has to ask it in a request for a writ of habeas corpus.  So Judge Frost dismissed every claim that Ohio cannot kill him.  Those claims, the judge said, must all be raised by writ of habeas corpus.

Broom also argued that Ohio's execution methodology was unconstitutional.  He offered a number of reasons.  Judge Frost rejected all of those arguments a couple of weeks ago in the broader case raising general challenges to Ohio's execution protocols.  He rejected them again.

Finally, Broom argued that he has a right to counsel and to access to the courts at his execution.  That means his lawyer should be there with some method for confidential communication with him and telephone access to the governor and the courts.  Those claims, can go forward, as can an equal protection claim that, the judge says, should probably be dismissed except that the state didn't ask.

So, some claims just dumped.  Some dismissed so that they can be refiled in habeas.  Some to go forward.

All of which, as I said earlier, begs the question:

Why are we so intent on killing this man?  He was convicted of a horrible crime.  Sure enough.  And then what happened?

In October 1985, he was sentenced to die.  It's been almost 25 years.  Still, we insist he must die.  We tried, last year, to kill him.  For two hours.  He helped (though it didn't work).  He moaned and cried out in pain.  Governor Ted gave him a reprieve - for a week.  He's still with us.  Still he must die.

But for godssake, why?

It won't bring back Tryna Middleton.  She'll still be dead.  She'll still be mourned.  Nothing there.

Her mother did tell the Parole Board, that she would feel as if Broom won if we don't kill him.  But won what?  What's the contest?  And the prize? 

Death in prison.  Slowly.  Over more years.  With no hope.

Are those the spoils?

Would Tryna's mother want to have them?

Here's what I know.  For 25 years Romell Broom has been on death row.  And as I wrote earlier, the sky hasn't fallen.  The Republic is not doomed.  Ohio was in economic turmoil and still is.  Nothing much has changed except that we're all older.

But we don't seem to have grown wiser.  Or more compassionate.

So we still think Romell Broom needs to be killed.

And I still don't know why.

Can't Kill Him Yet

Romell Broom

This much we know:  They really want to kill him this time. 

"Him" is Romell Broom, and "they" is the state of Ohio and specifically the Ohio Attorney General Richard Cordray and his staff.

Richard Cordray

Broom, you remember, is the guy they couldn't kill.  For two hours last  September, the murder team at the Southern Ohio Correctional Facility in Lucasville tried to stick needles for an IV into various parts of Broom's body.  Here's a bit of what I wrote that day.

So they began trying to kill Romell Broom at around 1:00 this afternoon. Two hours later, they were still trying. AP describes how the worked. They'd tried his arms, his legs, his arms again. He tried to help, he grimaced in pain. They took a break.

Broom's lawyers were frantically trying to reach the governor, the Ohio Supreme Court, a state court, and a federal judge. This was torture, and there was no end in sight other than midnight when the execution warrant would expire.

Finally, someone got through and the Governor called a halt. Enough. Really, quite extraordinary that last minute reprieve. Like something out of the movies. Here's what he said:

1. Romell Broom is currently in the custody of the Ohio Department of Rehabilitation, has been sentenced to death, and the Ohio Supreme Court scheduled his execution for September 15, 2009.
2. Difficulties in administering the execution protocol necessitate a temporary reprieve to allow the Department to recommend appropriate next steps to me.
3. Ohio Revised Code Section 2967.08 provides that the Governor may grant a reprieve for a definite time to a person under sentence of death, with or without notices or application.
4. Accordingly, I direct that the sentence of death for Romell Broom be reprieved until September 22, 2009.
5. Mr. Broom should remain incarcerated in the custody of the Ohio Department of Rehabilitation and Correction. The Department should carry out Mr. Broom’s sentence on that day unless further reprieve or clemency is granted.
6. I signed this Warrant of Reprieve on September 15, 2009 in Columbus, Ohio.
Ted Strickland, Governor

So they tried to kill him, they failed, and they're to try again next week. Maybe.

Well, "next week" got deferred.  It's now coming up on a year, and Broom's still with us and the state still wants to kill him.

Broom filed suit in federal court.

It's double jeopardy.  It's cruel and unusual punishment.  The procedures are faulty.  You can't do it.

Nonsense, the State said. 

Louisiana got to kill Willie Francis.  We can kill Broom.

That's not entirely fair of me.  The state's argument was more complicated than that.  The Willie Francis case really isn't much like Broom's.  In any event, much has changed since the Supreme Court decided Louisiana could strap Francis into the chair a second time.  And Broom has additional issues.

Still, the state said it could take another shot at killing Broom and asked the judge to throw out his case.  Yesterday, the judge refused.  He apparently dismissed part of the case (I assuming having to do with Ohio's general killing protocol, which the judge said earlier in the week was constitutional; but I've been having trouble downloading and reading a copy of the court's ruling, so it's hard to be sure.  When I get hold of it, I'll update.)  But he kept the guts of the claims alive.

Specifically, Frost left open to further legal debate questions about whether a second execution attempt would violate the U.S. Constitution's ban on "cruel and unusual punishment." He also allowed to stand questions about whether Broom was inappropriately denied access to his attorneys and the courts during the two-hour Death House ordeal last year at the Southern Ohio Correctional Facility near Lucasville.

It's preliminary.  The case goes forward.  There's more to come.  But for now, the state is frustrated.  Despite their best efforts, Romell Broom remains alive.

And you know, the sky hasn't fallen.  The Republic is not doomed.  Ohio was in economic turmoil and still is.  Nothing much has changed.

They could just give it up.

Don't hold your breath.

All Over But The Mourning

So he's dead.

Do you feel better now?

The legal wrangling is over. A last minute delay was resolved. Oh, sure it took them a half hour to get him intubated, but by the standards of Ohio, the state that builds bathroom breaks into executions, thirty minutes is hardly worth mentioning.

Defiant to the end, Ken Biros refused to demonstrate that he's the monster they say. His last words:

Now I am paroled to my Father in heaven, and I will spend all my holidays with my Lord and Savior. Peace be with you.

The swine.

This one was special, of course, as if they aren't all. Biros was the first victim of a one-drug system. A single, massive dose of thiopentol. He took about 10 minutes to die. They didn't need to try out the intramuscular back-up procedure.

So he's dead.

But we can't let it end there.

First, the hits keep coming. Romell Broom, the man they couldn't kill, has a hearing before Judge Frost tomorrow as they pursue the issue of whether Ohio can take another crack at murdering him. Abdullah Sharif Kaazim Mahdi is to be murdered in January. Additional murders are scheduled in February, March, April, May, and June. Expect more to be scheduled for July, August, and on into 2016 or so.

Second, the Judge knew better. Here's what Judge Frost said yesterday when he found himself without any law that would allow him to stop today's killing. There is, he said,

an unfortunate but soon to be obvious truth about today’s decision: Ultimately, Biros’ failure to obtain a temporary restraining order has perhaps less to do with the merits of his case or the substantive law involved than it does with the procedural and pragmatic realities that have boxed him into an expedited track toward execution under a fledgling protocol.

Essentially, he said, the state's lawyers successfully scammed the system to ensure that Biros wouldn't have the chance to make his case, so that he could be killed by this new system without a fair chance to show that he shouldn't have been. The substance of Judge Frost's conclusion is worth reprinting in full.

The Court must conclude, based on the evidence before the Court and the applicable law, that Biros is not entitled to a stay of execution because he has failed to demonstrate a strong likelihood of success on the merits of his claims. This is not to say that any of the various plaintiffs involved in this litigation are incapable of ultimately prevailing in this litigation. Ohio’s post-November 30, 2009 execution system continues to be replete with inherent flaws that raise profound concerns and present unnecessary risks, even if it appears unlikely that Biros can, at this time, demonstrate that those risks rise to the level of violating the United States Constitution. Thus, although the fact that the evidence at this stage of the litigation does not present a likelihood of Biros prevailing on his claim of a constitutional violation proves dispositive of his request for a stay of execution, it does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio’s policies and practices rise to the level of constitutional error.

As before, today’s decision therefore neither holds that Ohio’s execution protocol is constitutional nor unconstitutional. Rather, today’s decision reflects only that at this juncture, Biros has not met his burden of persuading this Court that he is substantially likely to prove unconstitutionality.

Several additional comments are warranted. As this Court has previously noted, Defendants are charged with carrying out humane and constitutional executions and not with simply prevailing in litigation. Director Collins testified in March 2009 that the ultimate goal is for Ohio to be as humane as possible and as professional as possible in carrying out its lawful executions. But Collins also testified that he believes that the procedures then in place were as humane and the best they could be. He was incorrect. To its shame, the State of Ohio then proceeded to depart from its protocol in an effort to execute Romell Broom. Following that failed execution, the State, to its credit, sought to implement a new protocol that eliminated some but not all of the issues surrounding the former protocol. This is a commendable act even if the conduct of various state actors in litigating this case and working on the new protocol was arguably less than commendable.

It is beyond debate that there is no legal question as to whether the State of Ohio can execute Kenneth Biros. It can. The relevant questions that the United States Constitution requires be asked are when and how. Too often a layperson will hear of litigation such as this case and be offended, applying a rationale derived from a biblical understanding of justice. But the Constitution neither endorses nor tolerates an eye-for-an-eye, suffering-for-suffering approach to executions. Rather, the Constitution upon which this country is founded protects all citizens, even the worst among the citizenry who have engaged in the most reprehensible of acts. In this context, the broad protections of the Constitution therefore turn a blind eye to the individual facts of the underlying crime and instead focus on rights, even the rights of those who gave their victims no such analogous consideration. Such fundamental fairness in application must inform cases like the one before this Court today, animating the proceedings so that justice, however often slow, is ultimately done. To accept less would be to diminish the Constitution.

It is arguable that today’s proceeding turns so greatly on the results of procedure and unintended consequences resulting from the acts by the parties and the courts that the notion of fundamental fairness is weakened. The risk is that when form is elevated over substance, the Constitution’s concerns are nearly relegated to secondhand considerations behind burden recognition and tactical strategy. Cases should be decided on the merits when those merits are presented to the courts–and the hope is that no court at any level will inadvertently preclude discovery of the merits. It is not clear whether Biros could discover and presents facts evincing a viable claim that would enable him to prevail in this litigation so that Ohio would need to find another method by which to execute him. It is clear that the law has in part divested Biros of select opportunities to make the attempt.

So he's dead.

We can all rest easier.

And they got it done more-or-less on time this round. And before Christmas.

Deck the halls.

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.

Back to Ohio and the Taking-a-Break-from-Killing Fields

And so, granting a pause in our excoriation of Governor Perry, the Corsicana Sun, DA-turned-Justice Jackson, and cowchip-slinging/ethics-violating David Martin, we return our attention to the question of what the hell they're doing up in Ohio.

To remind you of the Ohio plot to date:

Act I. The time: May 2, 2006. The place: Southern Ohio Correctional Facility (SOCF), the death house. Enter Joe Clark, condemned, and various inadequately trained and prepared prison guards who plan to murder him. The action: A botched execution. Duration: 87 minutes. Clark: "It don't work. It don't work." Curtain.

Act II. The time: May 24, 2007. The place: SOCF, the death house. Enter Chris Newton, condemned, and various inadequately trained and prepared prison guards who plan to murder him. The action: A botched execution. Duration: 1 hour, 53 minutes. Unidentified guard: "Piss call. Time for a bathroom break, Chris." Curtain.

Act III. The time: September 15, 2009. The place: SOCF, the death house. Enter Romell Broom, condemned, and various inadequately trained and prepared prison guards who plan to murder him. The action: A failed execution. Duration: just over 2 hours. Broom: "Arrgh! Arrgh! Fuck!" Governor ex machina: Strickland calls a halt and grants a one week reprieve.

Act IV. The time: Over the next couple of days. Scene i: The places: Governor Ted's office; Department of Rehabilitation and Correction offices, SOCF; Ohio Supreme Court. The action: People rushing around confused, scratching their heads, banging into walls. Everyone together: "Fuck, now what do we do?" Scene ii: The places: Sixth Circuit Court of Appeals. Governor Ted's office. The action: Stay and reprieve. The Court: "Broom." Ted: "Reynolds and Durr, but not Biros." Scene iii: The places: Governor Ted's office. Department of Rehabilitation and Correction offices. Action: People rushing around confused, scratching their heads, banging into walls. Governor Ted & DRC spokespeople, together: "We're doing a new plan - or not - but it isn't needed 'cause the old one is great."*

Act V has yet to be written.

Let's recap a couple of other details. Strickland was clear when he granted the reprieves to Reynolds and Durr that he intended for Biros to be executed in December and other killings to go forward. The amended or new or backup or whatever plans DRC was making would, therefore, have to be done by then. DRC, in turn, said that the new plans (or amended plans or backup plans or whatever they'll be if they ever are) would take as long as necessary to make and that there would be further reprieves as needed until they were done.

In the midst of that, Judge Frost was getting set to hold hearings on Ohio's approach to lethal injection in Biros's case. Originally, the hearings were going to be in 2008. Then last March. Then October. After the failed killing of Broom, he was added to the hearings. Then the 6th Circuit added Reynolds. The hearing was rescheduled for November so that there would be time to gather more information about what happened to Broom.

Today, with new plans in the works, Judge Frost said there's more discovery to do. He put the hearings off until June, 2010. And he granted Biros an indefinite stay. (Sorry, I can't find a copy of the order you can link to without a PACER account.)

Next up is Abdullah Sharif Kaazim Mahdi. He's scheduled for January. I wouldn't count on it.

Governor Ted may be getting a moratorium whether he likes it or not. Or, of course, maybe not.

_______
* Only the Joe Clark quote is accurate. The rest is made up, but accurately reflects what happened.

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.

Lord High Executioner

See, I thought I'd be writing today about two of the odder legal quests of recent years:

• The judge who sued his dry cleaner for $54 million (yes, you read that right) after it lost a pair of his pants, lost at trial, and lost again in the court of appeals (story here, opinion here);
• The tax lawyer who failed to convince either the New York courts or the federal Tax Court to allow him to deduct as medical expenses $100,000 for prostitutes and pornography (story here, opinion here).

But the news cycle has a life of its own, and what figured to be a very brief and alas final comment on the killing of Romell Broom (earlier posts on Broom's case here and here and here and here and here) by the State of Ohio, well, let's just say it was an dramatic day.

The 6th Circuit denied relief and a stay overnight. Broom's attorneys asked the entire 6th Circuit to review the opinion. The killing, scheduled for 10 a.m., was delayed while the court was refusing that request. So sometime around 1:00 this afternoon (the execution warrant is good for the calendar day) they began the killing.

*********

We pause now to get some necessary background through a history lesson.

From 1897 until 1993, Ohio's sole legal method of execution was the electric chair. Ol' Sparky, as it was known, took the lives of 312 men and 3 women. In 1993, Ohio's execution law was amended to allow the condemned to elect lethal injection rather than electrocution though electrocution remained the default method. In 1999, Wilford Berry was killed by lethal injection, the first person murdered by the state of Ohio in 36 years. In 2001, the law was amended again as the Ohio General Assembly formally abandoned the use of the electric chair. Since then, the only method of execution in Ohio has been lethal injection.

Lethal injection seems clinical, "like putting a dog to sleep" is what its advocates say. But it's not without its problems.

Ohio uses a series of three drugs to kill:

1. Thiopentol sodium, a fast-acting, short-term barbiturate that, if all goes well, puts the condemned person into a state of deep anesthesia in which he (they've all been men so far) will feel nothing;
2. Pancuronium bromide, a muscle relaxant that prevents all voluntary motion; in effect, pancuronium leaves the condemned paralyzed, unable to communicate in any fashion;
3. Potassium chloride, a salt; as it passes through the body, it causes every muscle to contract sharply (though not if there's enough pancuronium in the system); then it stops the heart within seconds.

With variation only in incidental details, this is the system used in every legal lethal injection to date in the U.S. Experts all agree that if everything goes the way it's supposed to, execution by lethal injection will take just a few minutes and be essentially painless but for the pinprick pain of the IV being inserted.

The thing is that everything doesn't always go as planned.

It's clear that in some percentage of exectutions around the country, insufficient doses of thiopentol have been used. When that happens, the condemned person suffers a horrific, agonizing death, effectively, he's tortured to death. And because of the pancuronium, the person cannot indicate that the anesthesia never took or wore off.

Part of the problem is that the people who are doing the killing aren't trained anesthesiologists (they screw up sometimes, too, of course). Just who they are varies from state to state, but they've included doctors who can't get hospital privileges anywhere, felons doing time for drug offenses, former EMTs, and . . . . Well, we really don't know who all does the work. It tends to be a secret, and we have information from only a few states.

The U.S. Supreme Court, in a case out of Kentucky, a state that had had but one lethal injection and that one seemed to go OK, said that what Kentucky seemed to be doing was constitutionally adequate, at least from what they could tell. Here in Ohio, there's been all sorts of litigation.

In state court, a trial judge decided in the cases of Ruben Rivera and Ronald McCloud, who were facing capital charges but hadn't actually been tried, that Ohio's method of lethal injection was unconstitutional because Ohio inmates had a right created by state statute to a painless lethal injection death and Ohio's killing system carried an unnecessary risk of inflicting pain. The court of appeals said his opinion wasn't a final order, and it's been wholly ignored by the state.

A general civil rights challenge in federal court has been going forward for five years or so. Next month, the judge is scheduled to hold two weeks of trial on whether Ohio's execution method is constitutional.

The Sixth Circuit Court of Appeals has been all over the place on the issue, reaching a series of fractured decisions but suggesting that somehow it needs to resolve the question.

And then there's the statute. Back in the day when they only killed by electrocution, Ohio's execution statute just said to run enough electricity to kill. Lethal injection has been different from the time they first made it an option, requiring that death by drug be caused "quickly and painlessly." The current version continues that:

[A] death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead.

But there's a catch. A separate section of the statute says that if it should happen that death by lethal injection is determined to be unconstitutional, the state can kill

by using any different manner of execution prescribed by law subsequent to the effective date of this amendment instead of by causing the application to the person of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death, provided that the subsequently prescribed different manner of execution has not been determined to be unconstitutional. The use of the subsequently prescribed different manner of execution shall be continued until the person is dead.

OK? In simple English: If a painless lethal injection should be unconstitutional, then you can be killed by any method the state cooks up, painless or otherwise.

So we have this method of killing, and bodies are dropping like flies until May 2, 2006. That's when it took 87 minutes to kill Joe Clark. They stuck him with needles 19 times trying to get the IV inserted. When they began with the drugs, he lifted his head from the table. "It's not working. It's not working," he said. He asked if they couldn't just give him poison to take by mouth. He moaned and groaned as they tried again.

So Ohio put together a commission to study what went wrong and how it could be done better. An interesting commission it was. All lawyers and prison guards and wardens. No medical personnel. And what they decided (I'm oversimplifying here) was that they'd be more careful and take their time in the future.

Just over a year later, they killed Chris Newton. It took an hour and fifty-three minutes. They gave him a bathroom break in the middle (no, I'm not kidding). Afterwards, the head of the prison system and the governor both said that the execution went perfectly. The new protocol, they said, worked just the way it should. At a press conference, I said that they were either delusional or lying. The press quoted me, but not that line.

Since then, we have the Rivera/McCloud decision and a decision from a federal judge saying that

Ohio’s method of execution by lethal injection is a system replete with inherent flaws that raise profound concerns and present unnecessary risks.

And the state fiddled with its protocol again, tinkering around the edges but not addressing any of the substantive concerns.

So here's what we know. Ohio has a history of screwing up lethal injections. Ohio doesn't much care and doesn't really intend to do anything about it.

End of history lesson.

*********

So they began trying to kill Romell Broom at around 1:00 this afternoon. Two hours later, they were still trying. AP describes how the worked. They'd tried his arms, his legs, his arms again. He tried to help, he grimaced in pain. They took a break.

Broom's lawyers were frantically trying to reach the governor, the Ohio Supreme Court, a state court, and a federal judge. This was torture, and there was no end in sight other than midnight when the execution warrant would expire.

Finally, someone got through and the Governor called a halt. Enough. Really, quite extraordinary that last minute reprieve. Like something out of the movies. Here's what he said:

1. Romell Broom is currently in the custody of the Ohio Department of Rehabilitation, has been sentenced to death, and the Ohio Supreme Court scheduled his execution for September 15, 2009.
2. Difficulties in administering the execution protocol necessitate a temporary reprieve to allow the Department to recommend appropriate next steps to me.
3. Ohio Revised Code Section 2967.08 provides that the Governor may grant a reprieve for a definite time to a person under sentence of death, with or without notices or application.
4. Accordingly, I direct that the sentence of death for Romell Broom be reprieved until September 22, 2009.
5. Mr. Broom should remain incarcerated in the custody of the Ohio Department of Rehabilitation and Correction. The Department should carry out Mr. Broom’s sentence on that day unless further reprieve or clemency is granted.
6. I signed this Warrant of Reprieve on September 15, 2009 in Columbus, Ohio.
Ted Strickland, Governor

So they tried to kill him, they failed, and they're to try again next week. Maybe.

Whenever I speak about the death penalty in a high school class, someone always asks what happens if they don't manage to kill the guy. My glib answer has been, "They get to try again." The sentence is death, not "attempt to kill." I take that answer from the tale of Willie Francis.

In 1946, Louisiana had trouble with the electrocution of Willie Francis. He didn't die. By the time they were ready to try again, he was in court. In a matter of months (things moved more swiftly in those days than they do today), they were in the U.S. Supreme Court. The case is State of La. Ex rel. Francis v. Resweber, and it was then and is now the only case of its kind to be decided by the court. And it's not really much help.

By a 5-4 vote, the Court said that Louisiana could try again to kill Francis. But there is no majority opinion. The plurality wrote all of six paragraphs. And there was serious concern about whether either the Cruel and Unusual or Double Jeopardy Clauses of the Constitution even applied to Louisiana. The legal landscape has changed consideerably since then. It's less clear that the law has. But damn, we're gonna see.

Amid all the uncertainty, here's what I know:

• It's not easy to kill people in a nice way, and in fact there is no nice way to do it.
• The people at the prison charged with killing Broom don't have a clue how to do it.
• The governor would dearly like some court to step in and stop the execution so he doesn't have to decide whether to stop it.
• The courts are going to be mighty busy with this one, and unless they all blow it off (which isn't impossible), Broom has a lot more than a week left.
• Lawrence Reynolds is scheduled for October 8. The system might be on hold by then. Or maybe not.

May you live in interesting times, says the old curse.

May Romell Broom survive them, says the modern prayer.

RULES IS RULES

More than twenty years ago, in Griffey v. Rajan (no free copy for a link, sorry), the Ohio Supreme Court set forth what you'd think might seem an fundamental principle of any decent justice system:

Ohio courts should strive to decide cases upon their merits rather than upon procedural grounds.

In fact, courts (in Ohio and elsewhere) rely on that principle exactly to the extent they're so inclined. Griffey itself was decided on a procedural technicality, despite its announcement of the rule against doing that. The full sentence, omitting citations, says, basically that policy is the more important than procedure except when it isn't.

Although we are committed to the principle that Ohio courts should strive to decide cases upon their merits rather than upon procedural grounds . . . , we refuse to let Civ.R. 60(B) [which would allow the merits to be heard] serve as an emasculation of the pleading rules and time limits.

The short of it is that there's no rule.

Which brings us, again, to the saga of Rommell Broom. (See here and here.) When last we dropped in on the case (here), the Ohio Supreme Court had decided to expedite its review of the case - which would give it time to decide and then stay the execution in order to permit a hearing. Friday afternoon, the court ruled. And in the great battle between technical procedure and merits, procedure won again.

The formal question was whether Broom should have a chance to use material that the state unconstitutionally hid at trial to show

by clear and convincing evidence that, but for constitutional error at trial, no reasonable trier of fact would have found him guilty.

Got that? Broom wants the chance to demonstrate that if the state hadn't cheated he couldn't possibly have been convicted. And remember, nobody is disputing the fact that the state did cheat, did violate the Constitution.

And the court said "No." Gee, you could have tried to use the material to show that years ago. Just because we seemed to say back then that you couldn't, well we didn't absolutely clearly say you couldn't, so it's too late now. The court didn't even say that he could have used the evidence back then, just that he might have been able to. And he had to have tried.

We might never have allowed you to try proving that you're innocent, but we're certainly not going to let you do it now. And then there's the throw away, almost a passing thought, certainly not the basis of the decision: Oh, you're probably guilty.

Justice Pfeifer concurred only in the result. He said that he looked at the evidence and it really wouldn't have made a difference. Otherwise, procedure be damned, he'd support the right to a hearing. And Justice O'Donnell, who didn't bother explaining why (didn't want to be pissing into the wind seems like one possibility) dissented and would have allowed the effort to prove innocence.

Years ago, I was arguing a case in the court of appeals. The issue involved some ambiguity about how judges were to impose sentence under Ohio's then new felony sentencing law. The reality was that if I won (which I did), my client would get resentenced and might (though not necessarily) get the same sentence again, this time properly imposed. One of the judges asked me why, if the ultimate sentence would probably be the same, the court of appeals was even involved. My answer was something like this:

Part of your job as an appellate court, is to make sure lower courts do their job right, and to tell them how to do it. My client is entitled to a fair sentencing procedure done in accordance with the law. If he gets that, maybe he'll get a lower sentence, maybe not. But he'll have gotten a chance. Rules matter and you have to explain what they are. But they matter not just for themselves but so that the parties get their chance. And you have to ensure that.

The judge looked at me from the bench and said

You know, I don't think I've ever said this before, I don't think I've ever even thought this before, but I agree with you completely.

When Alice asked Humpty Dumpty how he could "make words mean so many different things," she got a simple but dishonest answer:

"The question is," said Humpty Dumpty, "which is to be the master; that's all."

Words signify, they have meaning, not in themselves but toward an end. So with procedural rules. They matter not in themselves but because they provide a mechanism for reaching the merits of a case. When they triumph on their own, when they become the master, when we don't give Broom a chance to prove he's innocent now because he didn't make an effort to prove it at a time when it looked like he wouldn't be allowed to, the tail wags the dog.

Death, the courts tell us, is different. Damn straight.

Execution Tuesday.

Encouraging Developments

It is absolutely clear (widely ignored, but absolutely clear) that the Due Process Clauses of the Constitution ( Fifth and Fourteenth Amendments) require the prosecution to turn over any evidence in the possession of the government that is favorable to the defense. We call it "Brady material" after the Supreme Court's 1963 decision in Brady v. Maryland. (The Court extended the rule in 1995 in Kyles v. Whitley, a case out of Louisiana.)

The evidence doesn't need to be exculpatory, just favorable - either to determinations of guilt or punishment. It doesn't even need to be in the possession of the prosecutor. The obligation is ultimately the government's with the prosecution acting as the agent (and potential fall guy) for the rest of the gov. So the prosecutor has a duty to gather the evidence that the rest of the government has, scour it for what might be favorable, and turn it over.

There's a second set of discovery obligations in criminal cases that are set forth in court rules. The federal version is in Federal Rule of Criminal Procedure 16. The states each have their own. Ohio's is Ohio Rule of Criminal Procedure 16. The federal and Ohio rules are similar but not identical. Those rules overlap Brady obligations, but require release of non-Brady material, too.

It won't shock regular readers of this blog (are you out there?) to suggest that these obligations are too often honored only in the breach. And when prosecutors do get caught violating Brady or local criminal rules, alas, the sanction is too often nothing, at most a slap on the wrist.

Anyway, that's all preliminary to a couple of developments.

DEVELOPMENT 1

The American Bar Association, which has a lot of members, a big budget, significant prestige among big firm lawyers and law professors and people who know absolutely nothing about the day to day practice of law, and no actual power whatsoever, released an ethics opinion in July that might just make a difference. It's "Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense," and as Scott Greenfield notes, we haven't been giving it the publicity and attention it deserves.

Here's the ABA's summary (all in italics in the original which makes it hard to read, so I've removed them).

Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, [to] disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.” This ethical duty is separate from disclosure obligations imposed under the Constitution, statutes, procedural rules, court rules, or court orders. Rule 3.8(d) requires a prosecutor who knows of evidence and information favorable to the defense to disclose it as soon as reasonably practicable so that the defense can make meaningful use of it in making such decisions as whether to plead guilty and how to conduct its investigation. Prosecutors are not further obligated to conduct searches or investigations for favorable evidence and information of which they are unaware. In connection with sentencing proceedings, prosecutors must disclose known evidence and information that might lead to a more lenient sentence unless the evidence or information is privileged. Supervisory personnel in a prosecutor’s office must take reasonable steps under Rule 5.1 to ensure that all lawyers in the office comply with their disclosure obligation.

There are three key things here.

First, the disclosure obligation extends not just to evidence but to "evidence or information." Prosecutors have too often hidden Brady material by claiming that it's not really "evidence."

Second, the disclosure must occur

as soon as reasonably practicable so that the defense can make meaningful use of it.

That might seem self-evident, but try putting it to the prosecutor who "satisfies" his obligation by turning over material during the trial.

Third, it's an ethics opinion. I know, I know. But really, there are ethical rules for lawyers. And we're supposed to obey them. When we don't, we can be sanctioned, even disbarred. (Of course, the reality is that comparatively trivial transgressions tend to result in severe sanctions against criminal defense lawyers while major violations get prosecutor's wrist's slapped just before they get elevated to the bench, but that's just how it looks to an objective observer.) State ethics rules are the ones we're obliged to follow, and they are mostly modeled on the ABA's rules and interpreted in accord with the ABA interpretations. So this opinion has, at least potentially, some actual clout. At least, it does if we push it hard.

Development 2

Here in Ohio know we've been working for years to amend our Criminal Rule 16 to provide for greater discovery, ideally open file discovery. If the state is confident enough to charge my client, it should be confident enough to let me see what it's got. The fight has been going on for years, but the rule hasn't changed significantly. Now, however, it looks like there's actually going to be a real change.

It's not pure open file discovery and it's not the rule I'd have liked, but the Ohio Association of Criminal Defense Lawyers and the Ohio Prosecuting Attorneys Association have agreed on a draft rule (see story here). With both those organizations in line, there's every reason to believe the rule will be enacted and effective in 2010. This is big stuff.

Development 3

I've talked here and here about the discovery efforts in the Rommell Broom case. The Cuyahoga County Prosecutor hid evidence at his capital trial. Shortly after the defense got it, and before the defense could use it, the Ohio Supreme Court seemed to say, in another case, that the defense can neither get nor use such evidence. So, since 1994, Broom has sat on death row in Ohio with this evidence he couldn't use. Then, in July, the Cuyahoga County Court of Appeals said that Broom could use the evidence.

But can he? The state is planning to kill him in less than two weeks, on September 15. And the prosecutor has appealed the order allowing use of the information. Yesterday, the Ohio Supreme Court almost stepped in. In a three paragraph unsigned order yesterday, the court agreed to hear the appeal and ordered expedited briefing to be completed by September 9. One hopes that if it agrees the evidence can be used, it will also grant a stay of the execution so that it can be used.

For reasons they don't explain, Justices O'Connell and Pfeifer would not have expedited the briefing.

So, what does all this mean? Is honesty to rear its ugly head in the criminal justice system? Is someone actually going to force the government to play by the rules? Integrity? Fairness? Dare I say "Justice"?

No, I won't say any of that. But it's a glimmer, a start, a basis for some hope. That'll matter to Broom, of course. And it should matter to the rest of us.

Another Month, Another Killing

They're gathering up the needles and tubes again down in Lucasville. This time it's Rommell Broom.

Broom is on death row for the 1984 kidnap, rape, and killing of Tryna Middleton in Cleveland. At his trial in 1985, the prosecutors violated their constitutional obligation to turn over all evidence favorable to the defense. In 1994, Broom finally got that information, but before he could use it to petition for a new trial, the Ohio Supreme Court said, in the context of another case, that Broom had no legal right to use that information. (It really does make as little sense as it sounds like. I discussed the situation, and its current status in Broom's case, here.)

As these cases do, Broom's moved through the courts and then the political system. In 2007, the Parole Board voted to deny him clemency (report here). Strickland didn't have to decide, then, what to do because his execution was stayed while lethal injection litigation made its way through the courts. Now, although lethal injection litigation continues in Ohio, and although a court just decided at the end of July that Broom can finally use the information he got in 1994 (opinion here), the state is gearing up to murder him on September 15.

Last week, the Parole Board issued a supplemental clemency report. They Board didn't change its mind. The fact that he can now use the evidence the state hid to try and show that he should never have been convicted - and certainly should never have been sentenced to die - they decided unanimously, is no reason not to kill him before he gets a chance to do that.

Last month, Strickland defied the Parole Board's recommendation of clemency and ordered the murder of Jason Getsy to go forward. It's about impossible to imagine that he'll ignore the Parole Board's recommendation of murder and grant Broom clemency, or even a reprieve. So it's up to the courts. I'm not holding my breath, though I'm wishing hard.

Mark it on you calendar. September 15. We Don't Give a Damn Day.