Ohio Death Penalty Information

Clarence Carter update:  The stay of Clarence Carter's execution - which had been scheduled to take place tomorrow morning at 10 AM - is still in effect, and there is no word of a last-minute appeal in the works by the Ohio Attorney General.  According to Ohio's lethal injection protocol, an inmate to be executed is supposed to be moved to Lucasville "approximately 24 hours" in advance of execution.  Carter has not been moved.  Additionally, none of the other standard procedures leading to an execution has taken place - e.g., advance designation of witnesses.  Therefore, even if not a legal certainty, it is pretty clear at this point that Clarence Carter's execution will not take place tomorrow. 

Clarence Carter update:  No news (is good news).  As of midday today, the Ohio Attorney General had not filed an appeal of the stay of Clarence Carter's July 10 execution granted by US District Court Judge Frost on May 13. 

• Possibly totally unrelated aside:  As noted in this recent court filing (1-page pdf) in the Cooey lethal injection case, there has been some turnover in the capital case division of the Ohio Attorney General's Office, with the resignations of Asst. Attorneys General Heather Gosselin and Kelley Sweeney, and additional removal from the Cooey case of Asst. Attorney General Marianne Pressman (who has not resigned).   Charles Wille continues as the Ohio AG's lead counsel in the case.

(Earlier coverage of Clarence Carter case is here.)

Clarence Carter update:  The stay of Clarence Carter's July 10 execution signed by US District Ct. Judge Frost on May 31 is still in effect.  At this time there has been no appeal of the stay by the Ohio Attorney General.  (A challenge to the stay could still be filed; however, past challenges to stays issued in the course of the Ohio lethal injection challenge litigation were filed almost immediately after granting of the stays.)

More information on Clarence Carter case is here.

US 6th Circuit Court of Appeals "stays mandate" in Ohio lethal injection challenge case

The US 6th Circuit Court of Appeals has voted to "stay the mandate" of its June 1 en banc ruling (3-page pdf) which upheld the dismissal of the Cooey v Taft case challenging Ohio's lethal injection protocol.  The mandate is stayed pending the outcome of an appeal to the US Supreme Court seeking review of the case, and essentially means that court actions that would have resulted from the dismissal are on hold for the time being.  Attorneys for Cooey have 90 days to file the Supreme Court appeal (a request for a grant of certiorari), which may then be followed by a round or two of back-and-forth followup briefs by both parties.  A response from the US Supreme Court on whether to grant cert. is expected sometime this fall.

• Today's order staying the mandate is here (1-page pdf). (Note:  Even though this is a 3-judge panel ruling, no appeal for en banc reconsideration by the 6th Circuit is expected. This is the same 3-judge panel that first ordered dismissal of the Cooey case.)
• Stays of execution currently in effect for Jerome Henderson, Kenneth Biros, and Jeffrey Hill should remain in effect pending the outcome of the appeal to the US Supreme Court. (Richard Cooey does not have a stay because an execution date was never set for him following the expiration of his previous death warrant; an execution date is not expected to be set for him pending the outcome of this litigation).
• Clarence Carter was granted inclusion in the Cooey litigation on June 1, but no stay of his July 12 execution date has been granted yet.  It is expected that US District Ct. Judge Frost will issue a stay of execution for Carter now that the 6th Circuit has agreed to stay the mandate.  However, whether the 6th Circuit will uphold the stay is a subject of speculation. (Stays in effect for Henderson, Biros and Hill have already been upheld by the 6th Circuit on appeal.)
  • Correction:  As noted (too peripherally) in this earlier post (so much so that I overlooked it myself when rushing on the stay the mandate matter yesterday), Judge Frost issued a preliminary injunction (signed on May 31) staying the July 10 execution date for Clarence Carter.  The Ohio AG has not yet filed an appeal of the stay with the US 6th Circuit.  There is varying speculation as to whether the AG may yet do so, and as to how the 6th Circuit might respond if it does.

 

NEW SERIOUS EXECUTION DATE: ROMELL BROOM - OCTOBER 18

The Ohio Supreme Court today set an October 18, 2007, execution date for Ohio death row inmate Romell Broom.  This appears to be a serious execution date:  Romell's conviction and death sentence were upheld by a 3-judge panel of the US 6th Circuit Ct. of Appeals in March, '06; a petition for a 6th Circuit en banc rehearing was denied in October, '06; the US Supreme Court denied cert. in February of this year, and a motion for reconsideration in April.

• The US 6th Circuit's March, 2006, ruling denying relief to Broom, containing factual and legal background, is here (19-page pdf).

Note on Broom, Clarence Carter execution dates / status of lethal injection challenge case:  Attorneys for Romell Broom filed a motion for inclusion in the Ohio lethal injection lawsuit in US district court in April, but there has been no ruling on the request yet.  Because of the recent rulings by the US 6th Circuit ordering dismissal of the lethal injection case, and the still in-process request for review of that dismissal by the US Supreme Court, the status of various participants in the litigation is uncertain.  Attorneys are moving to "stay the mandate" of the 6th Circuit ruling, which would put implementation of the dismissal on hold pending the Supreme Court response. If the stay of the mandate issues, the consensus seems to be that US District Court Judge Frost will continue to grant inclusion to the lethal injection suit to qualified parties, at least until the Supreme Court response (expected some time this fall - although the timetable could vary depending on how long the Cooey attorneys are given to file briefs; they could be given 90 days, or they could be given less).  The consensus also seems to be that if there is a stay of the mandate, the stays of execution issued prior to the 6th Circuit's dismissal ruling would remain in effect until the Supreme Court response.  Clarence Carter was granted a stay of his July 10 execution in district court on the same day the 6th Circuit ordered the lethal injection case dismissed and - unlike the other stays - his stay has obviously not had any kind of review by the 6th Circuit.  There is a lot of uncertainty and diversity of opinion about how the Carter stay will play out.  Several other inmates were granted inclusion in the lethal injection litigation prior to the 6th Circuit ruling, but have not had execution dates set.  It is not clear whether stays of execution would be issued in response to new execution dates set for any of them before the Supreme Court response.

• As always, preceding information is provided caveat emptor.  It is a best attempt to synthesize information and opinions from various sources.

Some coverage of yesterday's US 6th Circuit lethal injection ruling: Terry Kinney has coverage for AP here, entitled "US appeals court declines to review lawsuit over lethal injection," (also noting the stay of execution granted yesterday for Clarence Carter, who had earlier been granted inclusion in the lethal injection litigation).  The Youngstown Vindicator has this article, entitled "Review of appeal process denied."  Christopher Bobby has this article in the Warren Tribune-Chronicle, entitled "Decision could affect Biros execution."  Blog coverage (w/ some commentary): Prof. Berman has this post at Sentencing Law and Policy, entitled "Split Sixth Circuit denies en banc review of Ohio lethal injection litigation."  Jonathon Adler has this post for the Volokh Conspiracy, entitled "Sixth Split on Lethal Injection Challenge."  Steve Hall at StandDown Texas Project has this.

AP excerpts:
...The full 6th U.S. Circuit Court of Appeals let stand, without comment, an earlier ruling by a three-judge panel of the court that said an appeal by one of the inmates was filed too late.

Ohio Attorney General Marc Dann said in a statement, "I am pleased with the 6th Circuit Court's decision today denying Cooey's request that the full court reconsider the panel's decision."

The lawsuit was filed in 2004 by inmate Richard Cooey, who was sentenced to die for raping and killing two University of Akron students in 1986. The lawsuit, which was later joined by several other inmates, did not seek to reverse Cooey's conviction or sentence but argued the state's use of lethal injection is inhumane.

The Ohio Public Defender's office, which represents Cooey, said it will now seek an appeal to the U.S. Supreme Court.

"We believe these issues are strong enough to merit the U.S. Supreme Court's time and attention," said Greg Meyers, the chief counsel to the Ohio Public Defender.

If the U.S. Supreme Court allowed a challenge to the statute of limitations in filing appeals, it would open the door to an evidentiary hearing on the merits of the inmates' claim that Ohio's method of lethal injection is cruel and unusual punishment that amounts to torture.

...Meyers said he was not sure how many inmates would be affected if the 6th Circuit's latest decision stands.

Six judges on the 6th Circuit, many of whom oppose any implementation of the death penalty, took an unusual step Friday and criticized the majority's decision not to review the case, which they said will result in simultaneous and contradictory proceedings in state and federal court.

Also Friday, a federal judge in Columbus, Ohio, delayed the upcoming execution of an inmate who was allowed to join the injection lawsuit earlier this year.

Full US 6th Circuit Court of Appeals refuses to reconsider dismissal of lawsuit challenging Ohio's lethal injection protocol

Today's order refuses an en banc (full court) rehearing of the court's earlier 3-judge panel dismissal of the Cooey v. Taft case challenging Ohio's lethal injection protocol.  Today's ruling is here (3-page pdf).  (Judges Gilman, Martin, Daughtrey, Moore, Cole and Clay dissented and would have allowed a full court rehearing.)

Today's ruling upholds the court's March 2, 2007, 3-judge panel ruling by the court, which ordered dismissal of the lethal injection lawsuit based on a strict interpretation of a statute-of-limitations restriction set by the AEDPA (Anti-Terrorism and Effective Death Penalty Act).

• March 2 ruling dismissing the suit is here (17-page pdf).
• Earlier coverage here.

Important note:  Today's ruling could lead to setting of new execution dates for several inmates who had been allowed inclusion in the lawsuit (which has been on hold in US District Court pending the 6th Circuit's ruling).  Today's ruling may also result in the lifting of stays of execution currently in effect for Richard Cooey, Jeffrey Hill, Jerome Henderson, and Kenneth Biros.  (It's not clear if the stays currently in effect will remain in place while attorneys attempt an appeal to the US Supreme Court.)

The Cooey v. Taft suit sought to have an evidentiary hearing in US district court to examine Ohio's lethal injection protocol - something that has never been done.  Once again, an attempt to take an honest and open look at what Ohio is doing with executions has been prevented.  In how many more ways must it be demonstrated that - from bottom to top - this system does not work before the Governor of Ohio steps up, takes responsibility and shuts it down?

Ohio Parole Board recommends denial of clemency for Clarence Carter by 6-3 vote

In a rare split vote, the OPB has recommended that Governor Strickland deny clemency to Clarence Carter.  Clemency report is here (19-page pdf).  The Cincinnati Enquirer has this coverage, entitled "Strickland urged to deny clemency."

More information on Clarence Carter - who has an execution date set for July 10 - is here

Some information on Clarence Carter / former Ohio Supreme Court Justice Herb Brown calls for sentence reduction to life sentence:  The Ohio Parole Board hearing for Clarence Carter - who has an execution date set for July 10 - took place yesterday.  Carter is being represented by attorneys from the Office of the Ohio Public Defender, and links to the clemency application and related documents are now on the OPD website here.  The entire clemency application makes for extremely compelling reading.

• At the risk of diminishing the significance of the numerous other strong documents in support of clemency for Carter, a very notable inclusion in the clemency application materials is a sworn statement made on Monday by former Ohio Supreme Court Justice Herbert Brown (who authored the 1992 opinion upholding Carter's conviction and death sentence) in support of a sentence reduction for Carter to life without parole.  Brown's statement is here (1-page pdf).  (Exhibit FF in clemency application materials.)

From Herbert Brown affidavit:

I, Herbert R. Brown, do affirm that following is true:

1)I served as a Justice on the Ohio Supreme court in 1992, when Mr. Carter's case was reviewed on direct appeal.

2) I authored the opinion for the court affirming Mr. Carter's conviction and death sentence.

3) I have reviewed a copy of the clemency application and the attached exhibits that were submitted by Mr. Carter's counsel to the Ohio Parole Board.

4) Based on that review, I believe that a sentence reduction to life without parole would be appropriate for Clarence Carter.

(More information on Clarence Carter is here.)

Clarence Carter execution date set for July 10

The Ohio Supreme Court today set a July 10 execution date for Clarence Carter.  This should be considered a potentially serious date.

The US Supreme Court denied Carter's application for certiorari on January 8 (US Sup Ct. Jan. 8 orders list here.)  Carter's habeas appeal was denied by the US 6th Circuit Ct of Appeals in April, '06.  A request for en banc rehearing by the 6th Circuit was denied in July, '06.  However, Carter is a party to the Cooey v. Taft lawsuit seeking to examine Ohio's lethal-injection protocol (see earlier post on Carter's inclusion in the Cooey lawsuit here).  A 3-judge panel of the US 6th Circuit Ct. of Appeals ordered the Cooey case to be dismissed on March 2 (see earlier posts here and here), however a motion seeking review of the dismissal ruling by the full 6th Circuit Ct. is still pending.

• April 19 ruling by US 6th Circuit Ct. of Appeals denying Carter's habeas appeal is here (19-page pdf)  (Opinion provides factual and legal background of the case.)

• Today's Ohio Supreme Ct. orders list is here (14-page pdf).