After Initial Botched Execution of Romell Broom, Ohio Supreme Court Gives Approval for State to Try Again

In a divid­ed 4 – 3 deci­sion, the Ohio Supreme Court on March 16, 2016 autho­rized the state to try for a sec­ond time to exe­cute death row inmate Romell Broom (pic­tured, after the state’s failed first attempt to exe­cute him). The court major­i­ty held that a sec­ond exe­cu­tion attempt would not vio­late con­sti­tu­tion­al pro­tec­tions against twice plac­ing a defen­dant in jeop­ardy of life, nor con­sti­tute cru­el and unusual punishment. 

Ohio first tried to exe­cute Broom on September 15, 2009, but the attempt was called off after two hours of unsuc­cess­ful efforts by exe­cu­tion­ers to estab­lish a viable IV line. Despite attempt­ing to insert the IV in 18 dif­fer­ent sites on Broom’s arms and legs, prison per­son­nel failed to find a suit­able vein, and in one case instead struck bone. 

Justice Judith Lanzinger, writ­ing for the major­i­ty, said the event was not a failed exe­cu­tion because set­ting the IV line was only a ​“pre­lim­i­nary step” to an exe­cu­tion and the exe­cu­tion itself ​“com­mences when the lethal drug enters the IV line.” The major­i­ty rea­soned that ​“because the attempt did not pro­ceed to the point of injec­tion of a lethal drug into the IV line, jeop­ardy never attached.” 

The court denied Broom an evi­den­tiary hear­ing on his claim that a sec­ond exe­cu­tion attempt would con­sti­tute cru­el and unsu­al pun­ish­ment, assum­ing that prison per­son­nel would this time adhere to the state’s exe­cu­tion pro­to­col. It wrote: ​“Strict com­pli­ance with the pro­to­col will ensure that exe­cu­tions are car­ried out in a con­sti­tu­tion­al man­ner and can also pre­vent or reveal an inmate’s attempt to inter­fere with the exe­cu­tion process. We sim­ply are unable to con­clude that Broom has estab­lished that the state in car­ry­ing out a sec­ond attempt is like­ly to vio­late its pro­to­col and cause severe pain.” 

Justice Judith French dis­sent­ed, say­ing, ​“The majority’s deci­sion to deny Romell Broom an evi­den­tiary hear­ing on his Eighth Amendment claim is wrong on the law, wrong on the facts, and incon­sis­tent in its rea­son­ing. If the state can­not explain why the Broom exe­cu­tion went wrong, then the state can­not guar­an­tee that the out­come will be dif­fer­ent next time.” 

In a sep­a­rate dis­sent, Justice William O’Neill wrote, ​“Any fair read­ing of the record of the first exe­cu­tion attempt shows that Broom was actu­al­ly tor­tured the first time. Now we embark on the task of doing it again.” 

Dr. Jon Groner, who exam­ined Broom short­ly after the 2009 botched exe­cu­tion, described the attempts at access­ing Broom’s veins as, ​“some­where between mal­prac­tice and assault.” Broom’s attor­neys said they intend to seek fur­ther review in other courts.