Ohio

Ohio

Ohio Executes Gary Otte as State and Federal Courts Decline to Review Use of Death Penalty Against Those Under Age 21

Ohio executed Gary Otte on September 13 after both the United States Supreme Court and the Ohio Supreme Court declined to review his challenge to the constitutionality of applying the death penalty against people who were younger than age 21 at the time of the offense. Otte's lawyer, supervisory assistant federal public defender Carol Wright, said Otte exhibited "abnormal" chest and stomach movements when he was injected with the execution drug, midazolam, showing signs of struggling for air and what she described as "air hunger." Wright attempted to leave the witness room to reach a phone to alert a federal judge to possible problems with the execution, but prison officials delayed her exit for several minutes and it took several more minutes to reach the court. By that time, Otte's stomach movements had ceased and the court declined to intervene. Corrections spokesperson, JoEllen Smith, said the prison "followed proper security protocol, and once [Wright's] identity and intention was verified she was given permission to exit the room." Smith said the execution was "carried out in compliance with the execution policy and without complication." Otte had sought stays of execution from the state and federal courts, asking them to review his claim that his death sentence should be overturned because he was only 20 years old at the time he killed Robert Wasikowski and Sharon Kostura in 1992. Otte's lawyers cited an August 2017 decision by a Kentucky trial court that had found the brain development and maturation of individuals aged 18-20 to be similar in critical respects to that of adolescents under age 18, and had declared the death penalty unconstitutionally cruel and unusual for defendants under age 21. They argued that "[t]he current scientific understanding of adolescent development underscores [that] their moral culpability is reduced making them categorically exempt from the death penalty." The Kentucky trial court issued a second ruling on September 6 that barred prosecutors from seeking the death penalty against an 18-year-old defendant in another case. On Tuesday night, September 12, the United States Supreme Court declined to review the issue and denied a stay of execution. The Ohio Supreme Court followed suit on the morning of September 13. Otte was pronounced dead shortly before 11:00 a.m.

REPORT: Most of the 26 Prisoners Facing Execution in Ohio Through 2020 Severely Abused, Impaired, or Mentally Ill

Almost all of the 26 men scheduled for execution in Ohio over the next three years suffer from mental, emotional, or cognitive impairments or limitations that raise questions as to whether they should have been sentenced to death, according to a new report released August 30 by Harvard's Fair Punishment Project. While the U.S. Constitution requires that the death penalty be reserved for the worst crimes and the worst offenders, the report—Prisoners on Ohio's Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age—says that, instead, these prisoners "are among the most impaired and traumatized among us." The report says Ronald Phillips, whom Ohio executed July 26, was "19 at the time he committed his crime, had the intellectual functioning of a juvenile, had a father who sexually abused him, and grew up a victim of and a witness to unspeakable physical abuse – information his trial lawyers never learned or presented to a jury." It says at least 17 of the 26 other condemned prisoners Ohio seeks to execute between September 2017 and September 2020 experienced serious childhood trauma, including "physical abuse, sexual abuse, neglect, and exposure to serious violence"; at least 11 have evidence of "intellectual disability, borderline intellectual disability, or a cognitive impairment, including brain injury"; and at least 6 "appear to suffer from a mental illness." Jessica Brand, the Project's Legal Director, describes what has happened in these cases as a "horrible trifecta" in which "people who are the most impaired received some poor representation at some time in their cases and then are facing the most severe penalty possible." The Ohio Alliance for a Mental Illness Exemption from the death penalty, which is supporting an Ohio bill seeking to ban the use of capital punishment against the severely mentally ill, issued a press statement in which they noted that two of the prisoners are so mentally ill that they should be categorically exempted from the death penalty. A Death Penalty Information Center review of Ohio’s 2017-2020 scheduled executions shows that more than 60% of the execution warrants are directed at prisoners who were sentenced to death before Ohio had adopted its life-without-parole sentencing option and jurors had to weigh the death penalty against the risk that a prisoner would be released back into society. Mirroring trends repeated across the country, death sentences fell dramatically in Ohio when the state amended its death-penalty law to make life without parole available as a sentencing alternative. Death sentences dropped by 2/3rds in the state over the next decade, from an average of 12.7 per year to 4.3. The data suggests that juries would likely have treated evidence of intellectual disability, mental illness, or behavioral problems arising from chronic abuse and trauma very differently if they had assurances that the defendants would not later be released if sentenced to life.     

Ohio Executes Ronald Phillips, Resumes Executions After 3½-Year Pause

After a hiatus of 3½ years, Ohio resumed executions on July 26, putting Ronald Phillips (pictured, photo credit: Forgiveness Foundation) to death with a three-drug combination of the sedative midazolam, the paralytic drug rocuronium bromide, and the heart-stopping drug potassium chloride. Phillips was pronounced dead at 10:43 a.m. It was the state's first execution since the botched execution of Dennis McGuire on January 16, 2014, and the 15th in the U.S. in 2017. Phillips' execution is the first of four executions that Ohio has scheduled for this year and of 27 scheduled through 2020. Ohio's resumptions of executions is expected to contribute to a small increase in executions in the U.S. this year, although the annual total is likely to remain among the lowest in the last quarter century. Phillips was executed despite the efforts of a diverse range of groups, including former attorney generals, justice reform advocates, exonerees, faith leaders, and editorial writiers, urging Governor John Kasich not to resume executions before Ohio addressed serious systemic flaws in its death penalty process that had been identified by a statewide death penalty task force. Phillips had sought a stay of execution until an ongoing challenge to Ohio's lethal-injection process is finally resolved, and his application drew support from fifteen pharmacology professors who filed a brief calling midazolam "unsuitable" and its as an execution drug "profoundly troubling." Justices Sotomayor and Ginsburg dissented from the denial of the stay, saying the court's action constituted a “failure to step in when significant issues of life and death are present.” Ohio officials said the execution proceeded without incident. Allen L. Bohnert, one of the lawyers who represents prisoners in the ongoing lethal-injection litigation, released a statement saying: "While Ohio will try to characterize today’s execution as 'problem-free,' do not be fooled." By choosing to inject the paralytic drug "extremely quickly," he said, Ohio "hid[ ] the real facts behind an artificial chemical curtain, . . . masking the problems with midazolam seen in multiple other executions." He urged the state to "heed the warnings of numerous pharmacists, pharmacologists, and anesthesiologists . . . and immediately halt any further use of midazolam and the paralytic drug in lethal injection executions." Ohio has executed 53 prisoners since the turn of the century—the most of any northern state and more than the combined total of every other northern state east of the Mississippi. Ohio ranked with Texas and Oklahoma as the only states to have executed at least one prisoner each year from 2001 to 2014.

Diverse Coalition Urges Ohio Governor to Halt Resumption of Executions

The Chairman of a state task force to reform Ohio's death penalty and two former state Attorney Generals have joined a diverse coalition of public officials, death-row exonerees, family members of murder victims, former corrections officials, and religious leaders urging Ohio Governor John Kasich to halt the state's planned resumption of executions. Citing legislative inaction on critical reforms, the high risk of error, and botched executions, the groups held a press conference (pictured) on July 29 detailing their opposition to Ohio's planned execution of 27 prisoners between July 2017 and September 2020, and delivered to the governor petitions with over 27,000 signatures asking that executions not resume. Ohio has not carried out an execution since it botched the execution of Dennis McGuire in January 2014, but is scheduled to execute Ronald Phillips on July 25. In April 2014, a Joint Task Force to Review the Administration of Ohio’s Death Penalty created by the Ohio Supreme Court issued a detailed report highly critical of the state's death penalty, and recommended 56 reforms to prevent wrongful convictions and unfair and arbitrary death sentences. In a written statement read at the press conference, the Task Force's chairman, now retired Judge James Brogan, called Ohio's planned resumption of executions "very troubling," saying that "[t]hose charged with ensuring our capital punishment system is fair and accurate have failed to act." Ohio "should not resume executions without addressing" the Task Force's reforms, Brogan said. Former Ohio Attorney Generals, Democrat Jim Petro and Republican Lee Fisher also urged Governor Kasich to extend the current freeze on Ohio executions. In a July 20 guest column in the Cleveland Plain Dealer, they wrote, "we strongly believe that Ohio should not execute again until important safeguards are in place." They said the 3½-year break since Ohio's last execution "should have been used to improve the Ohio death penalty system. Instead, not a single substantive reform has been put in place to prevent wrongful convictions and improve fairness in Ohio's capital punishment system." Kwame Ajamu one of the 9 Ohio death-row exonerees — also spoke at the press conference, stressing the risk of killing an innocent prisoner if executions resume. Family members of murder victims, corrections officials, and faith leaders, also spoke out against resuming executions and submitted letters to the Governor. “We are not asking the state to turn its back on people who commit serious crimes," said Pastor Carl Ruby with the Central Christian Church. "We are in favor of hard-life sentences for people who commit despicable crimes, but the death penalty eliminates the possibility [of correcting mistakes if] we got it wrong." 

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Federal Appeals Court Upholds Ohio Lethal-Injection Process, Vacates Execution Stays

A divided U.S. Court of Appeals for the Sixth Circuit on June 28 reversed the decision of a federal district court that had stayed executions in Ohio. In an 8-6 en banc decision, the court voted to allow Ohio to proceed with executions using a proposed combination of the controversial sedative midazolam, the paralytic drug pancuronium bromide, and the heart-stopping drug potassium chloride. Midazolam has been implicated in botched executions in Alabama, Arizona, Ohio, and Oklahoma and flawed executions in Arkansas. After a five-day evidentiary hearing in early January 2017, the District Court issued a preliminary injunction that stayed the executions of Ohio death-row prisoners Ronald Phillips, Raymond Tibbetts, and Gary Otte. At that time, it found "that administration of a paralytic drug and potassium chloride will cause a person severe pain" that would not be amerliorated by using midazolam, that the protocol itself created a "substantial" and "objectively intolerable" risk of serious harm, and that a compounded version of the drug pentobarbital was available as an alternative method of execution. The State appealed that decision to the Sixth Circuit, and in April, a three-judge panel affirmed the lower court's decision. The State then appealed that decision to the full court (a procedure called en banc review). The majority agreed that the prisoners "have shown some risk that Ohio’s execution protocol may cause some degree of pain," but said "some risk of pain 'is inherent in any method of execution—no matter how humane'” and "the Constitution does not guarantee ‘a pain-free execution.’” Allen Bohnert, one of the lawyers for the prisoners, said in a statement: "Multiple executions have demonstrated that midazolam is not a suitable drug for lethal injection, and especially when used with the two excruciatingly painful drugs Ohio abandoned in 2009. ... Ohio should not take the risk of continued botched executions by going back to using these dangerous, unsuitable drugs." He said the prisoners will seek review of the decision in the U.S. Supreme Court because "[n]o one in Ohio wants to see another botched execution." The decision permits Ohio to move forward with 30 executions that are scheduled between this month and 2021, while the District Court conducts a full trial on the lethal-injection challenge brought by death-row prisoners. Ohio has scheduled the execution of Ronald Phillips for July 26.

Arizona Makes Key Concessions, Reaches Deal With Prisoners to Settle Lethal-Injection Lawsuit

Death-row prisoners and the state of Arizona have reached a tentative settlement to address the state's lethal-injection protocol. Under the settlement, which could have an impact on lethal-injection litigation across the country, Arizona has dropped a three-drug formula from its protocol in favor of using a high dose of single barbiturate, and will honor a prior commitment not to use the sedative midazolam. The state also agreed not to use any paralytic drug in the execution process—which defense lawyers argued had served only to mask the prisoners' reaction to the painful third drug used to stop his heart. The proposed agreement provides greater transparency and accountability throughout the execution process, permitting witnesses to see corrections personnel escort the prisoner into the execution chamber, strap him to the gurney, and insert the intravenous line. The witnesses also will be able to view via closed-circuit monitors the drugs being inserted into the IV lines. In the past, Arizona had been sharply criticized for repeatedly changing execution procedures, and the state has agreed that the director of the Department of Corrections would no longer be able to make last-minute changes to the execution process. Arizona also agreed to test the drugs before they are used in an execution, and committed to not use expired drugs. Previously, the state had agreed it would not use the sedative midazolam—which was used in the botched execution of Joseph Wood in 2014—but had hedged on that commitment in a revised protocol published in 2015. At a hearing before U.S. District Judge Neil Wake, Assistant Attorney General Jeff Sparks said the agreement wouldn't immediately restart executions. "The state doesn't have drugs right now and has no intention of seeking a warrant," Sparks said. Dale Baich, a lawyer for the death-row prisoners, praised the settlement. "Arizona has had this history of problematic executions, but today the state is taking steps to decrease the risk that prisoners will be tortured to death," he said. Prisoners in Ohio are raising similar challenges as the state has repeatedly changed its proposed protocol, promising in 2009 that it would never again use a three-drug formula, then proposing exactly such a protocol in 2016. Arizona's lethal-injection procedure is still the subject of another lawsuit brought by a group of media organizations that are seeking transparency on the source of execution drugs and the qualifications of executioners.

Death Sentence Commuted, Kevin Keith Presses Innocence Claim in Ohio Appeals Court

An Ohio appeals court heard argument on June 6 on whether to grant a new trial to former death-row prisoner Kevin Keith (pictured), whose death sentence was commuted to life without parole by Ohio Governor Ted Strickland in 2010 amid concerns that he may be innocent. Keith, who has consistently maintained his innocence of the three 1994 murders for which he was sentenced to death, presented argument to the Ohio Court of Appeals for the 3rd District based on newly discovered evidence that the state forensic analyst whose controversial tire-track analysis linked him to the crimes had an undisclosed record of misconduct. Forensic analyst G. Michele Yezzo testified at Keith's trial that a license plate imprint of the numbers 043 left in a snow bank at the crime scene matched Keith's girlfriend's car, and that, by looking at a tire brochure, she could conclude that tire tracks also matched the car. No other forensic evidence linked Keith to the crime. In addition, a seven-year-old survivor who was shown a photo array of suspects excluded Keith's photo and told the police that it was her "Daddy's friend, Bruce" who shot them, and several alibi witnesses testified that Keith was more than 30 minutes away when the shootings took place. An alternate suspect who drove a car fitting eyewitness descriptions of the getaway car and that had a 043 in its license plate number also had a brother named Bruce. During the June 6 argument, Keith's lawyer, Rachel Troutman, told the Court of Appeals, "That expert [Yezzo] was known to the state — though not to Mr. Keith —  as someone who will stretch the truth to satisfy a department. Since the trial her forensic conclusions have proven faulty." Yezzo's personnel file said her analysis was untrustworthy, co-workers thought she suffered from a "severe mental imbalance," she used racial slurs in describing a minority co-worker, and supervisors and colleagues noted her "findings and conclusions regarding the truth may be suspect." Prosecutors said they expected the court's decision, which can be appealed to the Ohio Supreme Court, to be issued within a period of several weeks to several months.

Federal Appeals Court Upholds Injunction Against Ohio Execution Protocol

The U.S. Court of Appeals for the Sixth Circuit has upheld a lower federal court ruling blocking the state of Ohio from proceeding with plans to carry out executions with its new three-drug execution protocol. The decision affirmed a district court preliminary injunction that barred the state from using the drug midazolam as part of a three-drug execution process, and barred the state from using "any lethal injection method which employs either a paralytic agent...or potassium chloride." Judge Karen Moore, writing for the 2-1 majority, said, “We are bound by the district court’s factual finding that ‘use of midazolam as the first drug in a three-drug execution protocol will create ‘a substantial risk of serious harm.’” Midazolam, a sedative, has been linked to botched executions in Ohio, Oklahoma, Arizona, and Alabama. Three Ohio death-row prisoners, Gary Otte, Ronald Phillips, and Raymond Tibbets, challenged Ohio's proposed protocol, which would use midazolam, followed by a paralytic drug, followed by potassium chloride to stop the heart. In January, a U.S. Magistrate Judge conducted the most extensive evidentiary hearing to date on the constitutionality of using midazolam in executions. After hearing five days of testimony featuring expert medical witnesses and eyewitness accounts of previous midazolam executions, the court issued a preliminary injunction against Ohio's execution protocol. The Sixth Circuit upheld the district court's decision, ruling that—given the evidence presented at the hearing—the court's findings of fact regarding the risks posed by midazolam were not clearly erroneous. The appeals court also upheld the lower court's injunction against the use of any paralytic drug or potassium chloride, agreeing with the district court that Ohio was bound by its previous repeated representations that it would not use those drugs in future executions. In reliance on those representations, the death-row plaintiffs had dropped claims related to those drugs from the litigation. The Sixth Circuit wrote, "[a]llowing the State to reverse course and use pancuronium bromide and potassium chloride in executions not only would unfairly advantage the State, but also would undermine the integrity of this litigation." In a short concurring opinion, Judge Jane Stranch commented: "This dialogue about the constitutional prohibition on cruel and unusual punishment is closely intertwined with our ongoing national conversation about the American criminal justice system. Woven through both is disquiet about issues such as punishing the innocent, discrimination on the basis of race, and effective deterrence of crime. These concerns are present throughout the criminal justice processes from arrest, to trial, to sentencing, to appeals, and to the final chapter in death penalty litigation such as this." Judge Raymond Kethledge dissented from the majority opinion. Ohio Attorney General Mike DeWine's office has not yet decided whether to appeal the decision.  

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