Ohio Death Penalty Information

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?

Biros case:  The 2 Ohio assistant attorneys general (plus one) in performance before the US Supreme Court...

Biros stay of execution upheld:  AP coverage of today's rulings by the US 6th Circuit Ct. of Appeals and US Supreme Court upholding the stay of execution for Kenneth Biros is here.

US SUPREME COURT, US 6th CIRCUIT UPHOLD BIROS STAY OF EXECUTION

THERE WILL BE NO EXECUTION TODAY

US Supreme Court order upholding Kenneth Biros' stay of execution is here (1-page pdf).

There still has been no ruling from the US 6th Circuit Ct. of Appeals in response to the Ohio AG's appeal to have the stay lifted by that court.  When that ruling issues, it could give rise to another appeal to the US Supreme Court by the losing party.

CORRECTION/UPDATE:  The US Supreme Court and US 6th Circuit Ct of Appeals have both upheld the stay of execution for Kenneth Biros.  The 6th Circuit en banc refusal to reconsider upholding the stay issued first, followed by the US Supreme Ct. stay. 

Over the course of the last 24 hours, the "new" Ohio Attorney General's Office has made a new name for itself at the US Supreme Court. 

Biros:  Ashley Tate has this article in the The Jambar (Youngstown State Univ. student newspaper), entitled "YSU graduate faces execution."

Ohio making international execution news once again:  The latest unusual Ohio execution is now getting coverage by news outlets around the globe.

Biros update:  Still no word from the courts as the 10:00 AM scheduled time of execution has come and gone.  AP has some updated reports here and here.

There is now some speculation that the US Supreme Ct. is intentionally waiting for a ruling by the 6th Circuit on the appeal filed before it from the Ohio AG before acting, anticipating that whatever the 6th Circuit rules will end up going right back the the high court again on another appeal.  The US Supreme Court has oral arguments scheduled to begin this morning as well - so it could be a long day.