US 6th CIRCUIT COURT OF APPEALS ORDERS DISMISSAL OF COOEY V. TAFT LETHAL-INJECTION CHALLENGE CASE

A 3-judge panel of the US 6th Circuit Ct of Appeals today ordered that the Ohio lethal-injection challenge case (Cooey v. Taft) be dismissed due to a statute of limitations restriction.  Vote was 2-1 (Suhrheinrich, Siler v. Gilman). The case is remanded to Judge Frost in the US District Ct for Southern Ohio with orders to dismiss the Cooey appeal, and the others attached to it.   Opinion is here (17-page pdf).

In a nutshell:  The court had wide berth to rule either way on the statute of limitations issue.  For whatever unstated reasons (probably many), the two-judge majority did not want an evidentiary hearing to take place examining Ohio's lethal-injection protocol.  Particularly revealing is that they managed to pick a date to start the two-year statute of limitations clock that invalidates every one of the nine plaintiffs attached to the current lawsuit (eight of them filed too late and one too early, measured against when the Ohio Supreme Ct. rules on direct appeal).  Logically, it could just as well have been the date US District Ct. Judge Frost picked in his rulings to allow the evidentiary hearing to take place and to allow additional plaintiffs to join the suit - the same date Judge Gilman endorsed in dissent.

Important note:  If today's ruling stands, it operates to vacate the US district court stays currently in effect for Cooey and some of the others attached to the case.  The 6th Circuit's order does not go into effect for ten days (when the "mandate" issues).  Before then, attorneys in the case will be asking the 3-judge panel to stay the mandate while an appeal for an en banc (full 6th Circuit) hearing (and/or certiorari) is underway.  If the panel grants the motion to stay the mandate, the stays of execution will remain in effect.

• Several Ohio death row inmates were granted inclusion in the Cooey v. Taft lawsuit.  (Those still alive are: Richard Cooey, Jeffrey Hill, Jerome Henderson, Arthur Tyler, Johnnie Baston, John Spirko, Kenneth Biros, Clarence Carter and Nicole Diar.)  Of those nine (not all of whom have had execution dates set), stays of execution are currently in effect for Richard Cooey, Jeffrey Hill, Jerome Henderson, and Kenneth Biros.  (The Biros stay was in the process of being appealed to the 6th Circuit when a reprieve was issued by Governor Strickland on Jan. 19.  No action was taken by the court subsequent to the reprieve, so it is still in effect.) Two inmates with current execution dates - James Filiaggi and Christopher Newton - have declined to pursue federal appeals available to them and never sought inclusion in the Cooey case.