Ohio Death Penalty Information

On Ohio death row inmate Jeffrey Hill:  Margo Pierce has this article in the current issue of Cincinnati CityBeat, entitled "Waiting to Be Killed: Death Row helps a man make sense of life."

• More information on Jeffrey Hill, whose execution is presently stayed pending the outcome of a request to the US Supreme Court to review the recent dismissal of litigation challenging Ohio's lethal injection protocol, is here.
• March 1, 2006, CityBeat article on Jeffrey Hill, entitled "Killing a Family: entitled "Seeking mercy for a murderer -- from the same family," is here.

Excerpt from March 1, 2006, article...
The voices demanding vengeance after a murder usually come from the family of the victim. What happens when the killer and the victim are members of the same family?

One Cincinnati family found out the hard way in 1991 when Jeffery Hill killed his mother, Emma Hill, stabbing her to death while high on crack cocaine. Fifteen years later, his state and federal appeals exhausted, Hill is awaiting an execution date from the Ohio Supreme Court, and his family works to keep him alive.

...Tim Payne, assistant state public defender, has represented Hill for seven years. He says the death penalty isn't appropriate in this case.

"He didn't have any adult criminal record involving violence," Payne says. "The victim's family does not want the death penalty. The offense was out of character and wouldn't have happened but for his crack cocaine addiction. He's certainly not what one would think of as the worst of the worst criminal defendants."

Noting that other murders in Ohio involving individuals high on crack cocaine haven't garnered the death penalty, Payne says the fact that Hill was prosecuted in Hamilton County is a factor.

"This is another case where defense counsel, in the assessment of our office, was deplorable and provided deficient performance," he says. "This case took over a year to go to trial, the client confessed to the crime. Council had to have known their best shot at helping the client was at sentencing, but they did not start preparing for sentencing until the very last minute."

An expert on mental health and addiction who was supposed to testify on Hill's behalf was hired less than 24 hours before the hearing and spent only 20 or 30 minutes with Hill the morning before he testified, Payne says. He believes one factor is money.

"Hamilton County's been notorious in terms of the poor compensation for public defenders in death penalty cases," Payne says. "Ten years later, when you get into federal (habeas corpus hearings), those attorneys are paid $160 an hour. It seems a little out of kilter." ...

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.

 

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?

More coverage of 6th Circuit ruling in Cooey v. Taft lethal-injection case:

• Reginald Fields has this article in the Cleveland Plain Dealer, entitled "Lethal injection challenge dismissed; Court says suit not filed in time."
• The Columbus Dispatch has this article, entitled "Court rejects challenge against lethal injection; Inmate suit tossed on procedural grounds."
• Jim Provance has this article in the Toledo Blade, entitled "Inmates lose lethal-injection ruling: Ohio death-row challenge too late, panel says."
• Dan Horn has this coverage in the Cincinnati Enquirer, entitled "Lethal injection challenge fails
• John McCarthy has this AP coverage, entitled "Inmate to challenge ruling in challenge of execution method."."

Plain Dealer excerpts:
A federal court has thrown out a lawsuit brought by nine death row inmates challenging Ohio's lethal injection process, saying the prisoners did not file it within a required time period.

The ruling from a split three-judge panel at the U.S. 6th Circuit Court of Appeals, however, does not address the central issue behind the suit: whether Ohio's method of execution is a humane way to die or tantamount to death by torture.

And the ruling does not stop other inmates from filing the exact same suit, which could still force a legal battle over the constitutionality of Ohio's execution process.

"If this decision stands, eight of these nine inmates may die because of a technicality," said Greg Meyers, chief counsel for the Ohio public defender's office.

Ultimately, he said, an eligible inmate will bring a lawsuit and "hold Ohio's feet to the fire as to whether lethal injection really is a machinery of death."

Meyers represents death row inmate Richard Cooey, who has been on death row for 20 years for the murders of two University of Akron students and initiated the lawsuit in 2004. Meyers argued that the clock should start once a last-ditch federal appeal, which comes after the state appeals process, has been lost and a firm execution date is set.

"Otherwise, this ruling forces you to challenge the way you are going to die before you know for sure that you are going to die," Meyers argues.

...The Ohio attorney general's office, which came out the winner in Friday's ruling, said it has never shied from debating lethal injection and suspects that court battle is still coming.

Attorney General Marc Dann "believes the constitutionality of lethal injection should be vetted in an appropriate lawsuit," said Jim Canepa, chief of capital crimes for the attorney general.

The ruling says that the two-year statute of limitations for inmates filing such lawsuits begins after a condemned prisoner loses a state Supreme Court direct appeal of his death sentence.

The state had argued the two-year window could begin at that point, or even earlier when the trial court hands down the death sentence designating lethal injection as the method.

"It just makes sense," said Canepa, adding that two years seems enough time for inmates to complain since they know at the start how they will die, rather than waiting years later when death is imminent.

...Ohio Gov. Ted Strickland has said he is aware of the Cooey lawsuit and concerned that Ohio's procedure could eventually be deemed unconstitutional. While he offered a reprieve to three condemned men to take more time to study whether they were worthy of clemency, the governor has not called for a moratorium.

In Friday's 2-to-1 decision, the judicial panel said a U.S. District Court judge erred when he allowed the case to proceed. It sent the case back to the District Court and ordered it dismissed.

Meyers said he will ask for the full circuit court, about 15 judges, to review the decision. If that fails, he will appeal the case to the U.S. Supreme Court.

Cooey and the other eight inmates who had won stays of their executions will not have their death sentences carried out while the case is pending, said Canepa.

But if the appeals court ruling stands, Cooey and seven others would be out of options.

The ninth inmate in that lawsuit, child killer Nicole Diar, sent to death row in 2005 from Lorain County, joined the Cooey lawsuit even before her state appeal was decided. That means she would still be eligible to bring a future lawsuit. ...full article

Cooey v. Taft ruling:  Jim Provance has this article in the Toledo Blade, entitled "Federal appellate court rules Ohio death row inmate waited too long to file appeal." Dan Horn has this coverage in the Cincinnati Enquire, entitled "Judges: Inmate can't challenge injection."  AP has this.

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.

US 6th Circuit arguments heard in Cooey v. Taft:  Eric Hornbeck has this coverage of yesterday's oral arguments in the US 6th Circuit Ct of Appeals in the Ohio lethal-injection challenge case, Cooey v. Taft.  The outcome of the 6th Circuit Ct appeal will determine whether or not an evidentiary hearing examining the Ohio lethal-injection protocol can take place in US District Ct.  Terry Kinney has this AP report.

Misleading media reports on oral arguments being heard today in the Ohio lethal-injection challenge case:  Terry Kinney has this misleading AP report on oral arguments being heard today by a 3-judge panel (Suhrheinrich, Gilman, Siler) of the US 6th Circuit Ct of Appeals in the Cooey v. Taft case challenging Ohio's lethal-injection protocol.

Excerpt:
Several opponents of Ohio's lethal injection method of execution contend that the chemicals used in the three-step process inflict such severe pain that death results, in effect, from torture.

They want the procedure declared unconstitutional. The 6th U.S. Circuit Court of Appeals has agreed to hear their arguments on Thursday, less than a week after the court blocked the scheduled Ohio execution of a convicted murderer.

The challenge was filed in December 2004 on behalf of Richard Cooey, 39, who had been sentenced to die for raping and killing two university students in 1986.

Eight Ohio death row inmates have joined Cooey's lawsuit since then, although two have been executed after failing to obtain stays of execution.

Important Note:  Today's oral arguments in the 6th Circuit are pursuant to an interlocutory appeal by the Ohio AG challenging the ongoing proceedings in US District Ct.  Today's arguments will not be addressing the constitutionality of Ohio's lethal-injection protocol, but rather whether such an examination can go forward in the district court.  The district court proceedings (specifically, a hoped-for evidentiary hearing to actually examine the Ohio protocol for the first time) have been on hold pending the outcome of the appeal being argued today, which involves a statue of limitations question, a res judicata issue, and some other matters.  Depending on the outcome of this 6th Circuit appeal, the evidentiary hearing in US district court will either go forward or be barred.  The AP article above and other media reports are innacurate in that they suggest that today's proceedings are addressing the consitutionality of the Ohio lethal-injection protocol.  Instead, they should accurately report that today's (very important) hearings will determine whether that examination can take place.

Update:  Marginally revised AP report is here.

The Ohio Public Defender's website has posted this assemblage of court filings in the Cooey v. Taft lethal injection challenge case (now undertaken on behalf of Richard Cooey, Jeffrey Hill, Arthur Tyler and Johnnie Baston) made in US District Ct and the US 6th Circuit Ct of Appeals.  The lawsuit is OPD's ongoing effort to have an evidentiary hearing allowed in US District Ct so that a first-ever factual examination of Ohio's lethal injection procedure can take place under court supervision.

Some earlier posts related to the Ohio lethal injection challenge:

• Effect of US Supreme Ct ruling in Hill case on Ohio lethal injection challenge
• Refusal of Ohio Supreme Ct to set execution dates for Arthur Tyler and Johnnie Baston
• Stay of execution granted to Jeffrey Hill
• News reports, commentary and other information related to botched execution of Joseph Clark