Ohio

Ohio

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.  

NEW VOICES: Bipartisan Former Governors Support Death Penalty Exemption for Those With Severe Mental Illness

In a joint op-ed for The Washington Post, former governors Bob Taft (pictured, l.) and Joseph E. Kernan (pictured, r.) have expressed bipartisan support for proposed legislation that would prohibit the use of the death penalty against people who have severe mental illness. Taft, a former Republican governor of Ohio, and Kernan, a former Democratic governor of Indiana, call the execution of mentally ill defendants "an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts." They highlight recent executions of Adam Ward, who exhibited symptoms of mental illness by the age of four, and decorated Vietnam War veteran Andrew Brannan, whom the Department of Veterans Affairs classified as 100% disabled as a result of his combat-related posttraumatic stress disorder and bipolar disorder, as examples of severely mentally ill defendants who "continue to be sentenced to death and executed" in the United States. Legislators in Arkansas, Indiana, Ohio, South Dakota, Tennessee, Texas, and Virginia have introduced legislation in 2017 that would prohibit the death penalty for people with severe mental illness, arguing that these defendants are less culpable, more vulnerable to wrongful conviction, and often falsely perceived by jurors as more dangerous. Taft and Kernan explain that "Legislation being considered on this topic varies by state, but each bill creates a case-by-case decision-making process—conducted by either a judge or jury—to determine if a defendant has a severe mental illness. Only those with the most serious diagnoses would qualify." They urge legislatures to pass these measures, saying, "This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency."

Inventor of Midazolam Opposes Its Use in Executions

As U.S. pharmaceutical companies have removed medicines from the market to prevent states from obtaining them for executions, states have turned to alternatives, like the sedative midazolam. Dr. Armin Walser, who was part of the team that invented the drug in the 1970s, is dismayed at that development. “I didn’t make it for the purpose” of executing prisoners, Dr. Walser told The New York Times. “I am not a friend of the death penalty or execution.” For most of midazolam's history, the medicine was used only for its intended purpose: as a sedative in procedures like colonoscopies and cardiac catheterizations. Since 2009, however, six states have used it to carry out a total of 20 executions. Midazolam's use in executions has been marked by controversy because, critics argue, it is a sedative, not an anesthetic, and does not adequately anesthetize the condemned prisoner before painful execution drugs are administered. Megan McCracken, a specialist in lethal injection litigation with the University of California-Berkeley law school said, “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.” Midazolam was used in the botched executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. In January 2017, a federal magistrate judge barred Ohio from using midazolam in executions, saying that its use presented a substantial and objectively intolerable risk of serious pain and suffering during executions. As a result of litigation challenging Arizona's lethal injection protocol in the wake of Wood's execution, that state agreed that it would never again use midazolam. The manufacturer of the drug has said it “did not supply midazolam for death penalty use and would not knowingly provide any of our medicines for this purpose," leaving states to turn to alternative suppliers if they want to continue using midazolam in executions. Walser said that, when he learned about midazolam's use in executions, "I didn't feel good about it."

Ohio Jurors Report Emotional Toll of Serving on Capital Case

The costs of the death penalty are more than financial, they are emotional; and these effects are felt not just by the parties to the trial and the families of victims and defendants, but by the jurors as well. A recent report in the Akron Beacon Journal describes the traumatic psychological impact serving in the Summit County, Ohio death penalty trial of Eric Hendon had on the jurors in that case. After a three-month trial and capital-sentencing hearing, the jury found Hendon guilty of a 2013 triple murder and sentenced him to life without parole. Before the trial even began, one juror wrote about her concerns about the death penalty, saying, "It is very difficult for me to fathom crime against people, especially violent crime. It is equally difficult for me to fathom how capital punishment can be good. I understand it is our law. If necessary, I will do my duty. I must admit, though, my hope coming in was that I would serve on a trial that would not tear my soul apart." In the aftermath of the trial, several jurors said the experience had adversely affected them. One juror reported trouble sleeping for weeks after the trial ended. Another said he was haunted by images of the crime. A white juror reported becoming paranoid after the trial, saying seeing two black men (defendant Eric Hendon is also black) in an older model car near his home "kind of freaked me out." A number of jurors did not want to talk to the press and, fearing harassment for their jury service, tried to keep their names and addresses from being released to the Beacon Journal. After the trial ended, Judge Amy Corrigan Jones held hearings to decide whether to release the jurors' information. Six jurors attended the hearings and said they worried for their safety if their information was released. One woman became emotional at the hearing, saying she did not want to relive the experience. “I don’t want to think about this,” she said. “I need to stop messing with my life. I need to move on.”

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