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    Ohio Capital Punishment News

    Full US 6th Circuit Court of Appeals refuses to reconsider dismissal of lawsuit challenging Ohio's lethal injection protocol

    Today's order denying an en banc rehearing of the court's earlier dismissal of the Cooey v. Taft case challenging Ohio's lethal injection protocol 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 dismissing the lethal injection lawsuit based on a statute-of-limitations consideration.
    March 2 ruling dismissing the suit is here (17-page pdf).

    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.)

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    A federal judge on Wednesday allowed five additional death row inmates, including a 44-year-old Cleveland man, to join a lawsuit claiming Ohio's lethal injection procedure amounts to unconstitutional cruel and unusual punishment.

    The move comes as the state fights a northeast Ohio judge's order that the prisons department turn over a detailed description of its execution process to a man facing an aggravated murder charge.

    The five inmates permitted to join the 2004 lawsuit by U.S. District Judge Gregory Frost include an inmate on death row under two separate death sentences.

    The five inmates allowed to join the injection lawsuit: Grady Brinkley (Lucas County); Marvin Johnson (Guernsey County); Daniel Wilson (Lorain County); Darryl Durr (Cuyahoga County); and James Conway, under two separate death sentences in Franklin County.

    Durr was sentenced to death on Dec. 19, 1988, in Cuyahoga County Common Pleas Court for the rape, kidnapping, robbery and murder of Angel Vincent, 16, of Elyria. She disappeared Jan. 31, 1988. Her body was found in a ravine at Denison Ave. and Fulton Rd., on April 30, 1988.

    As he has in rulings regarding other inmates, Judge Frost determined that the five met a deadline to join the lawsuit.

    The state opposes the lawsuit, arguing the deadline for filing was missed and that the clock begins ticking toward the cutoff when state appeals run out. The inmates argue the timeline begins when all possible appeals -- including those in federal courts -- have been exhausted.

    Frost's ruling brings to 20 the number of death row inmates challenging the injection process.

    The inmates "each have a significant interest in this case" because they could still face an execution while the lawsuit proceeds, Frost said. None of the inmates have a scheduled execution date.

    Late last month, Attorney General Marc Dann sued in the state Supreme Court in an effort to stop a Lorain County judge from ordering Ohio to reveal details of its execution process.

    The order by Judge James Burge came in the case of Ruben Rivera, who was indicted in 2004 on an aggravated murder charge carrying the possibility of the death penalty. Rivera, who awaits trial, has filed a motion declaring the death penalty unconstitutional.

    In response, Burge ordered the prisons department to describe its method of execution, including a detailed list of all supplies and procedures, how the injections are done and where the lethal drugs are stored.

    Dann argues Burge does not have the authority as the presiding judge of a criminal trial to decide the constitutionality of the death penalty law.

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    ELYRIA, Ohio -- A 700-page binder on how the state executes death row inmates has been turned over to a judge who is considering whether the lethal injection procedure is legal.

    The materials were given to Lorain County Common Pleas Judge James Burge on Wednesday in the challenge filed by two murder suspects facing death penalty trials. It's the first time the state has released such information.

    The judge gave a copy to defense attorneys involved in the challenge but agreed with a state request to withhold the materials from attorneys handling other death penalty cases.

    The binder has records on past executions and details on drug concoctions, supplies and materials used to carry out executions. The binder also lists qualifications and training of the 16-member execution team, but does not identify those individuals. The items remained sealed from the public.

    Information has been released that's never been available before, said Jeffrey Gamso, an American Civil Liberties Union attorney representing defendant Ruben Rivera.

    Under Ohio's current death penalty law, the state has executed 26 inmates by injection since 1999.

    The judge plans a hearing next month with expert testimony on whether lethal injection is unconstitutionally cruel and unusual punishment. The hearing is unusual in that Burge will rule on the constitutionality of the execution procedure before the trial.

    Burge told state prisons Director Terry Collins and attorneys for the defendants awaiting separate murder trials in his court that his intention was to find out "whether this method is painful and if it is, how painful, and whether it is a protracted pain or momentary."

    Burge was a former defense attorney who handled capital punishment cases before being elected to the bench in 2006.

    Burge said Thursday he agreed with prosecutors' request to seal the documents from the public because they are evidence, and defense attorneys did not object.

    He said he considers the documents public record but said requests to review them should go through the state.

    "There is nothing that I can do to further the resolution of this matter by giving out the evidence," Burge said in a phone interview. "I don't have that authorization once the parties agree to it."

    A request was made to the Department of Rehabilitation and Correction Thursday seeking the documents.

    The state Supreme Court ruled in October that the judge has the authority to order the state to turn over documents related to the execution process. The state had argued that Burge does not have the authority to decide the constitutionality of death penalty law.

    Gamso had said the high court's decision meant the state could no longer hide the process it uses for putting inmates to death.

    Rivera, charged in the 2004 shooting death of Manuel Garcia, has asked Burge to drop the death penalty aspects of his case on the grounds that the state's lethal injection process amounts to unconstitutional cruel and unusual punishment.

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    Ohio doesn't have an official moratorium on the death penalty, but a tangled combination of legal issues has produced an informal one after 26 executions spanning nine years.

    The state carried out two executions last year, and four death sentences were handed down. Since 1999, when Ohio renewed executions, only one year saw fewer executions: 2001, when there was one.

    As a result of the slowdown, there is a kind of backlog on Death Row, with 16 inmates considered closest to execution, but it is uncertain whether any executions will proceed in the near future, according to the annual Capital Crimes report compiled by Attorney General Marc Dann. The report does not predict when, or whether, those executions will happen.

    The report is required by law to be sent to state officeholders and legislative leaders annually by April 1.

    A lawsuit over the constitutionality of the lethal-injection process used by Kentucky and most other states, including Ohio, was argued earlier this year before the U.S. Supreme Court. Until the high court rules, state and federal courts nationwide have been unwilling to allow executions to proceed.

    At the same time, Ohio has homegrown legal issues about lethal injection -- stemming from a case involving Richard Wade Cooey II, a Summit County man convicted of murdering two young women in 1986 -- as well as mental-retardation.

    Both legal cases have been joined by several inmates, further slowing the machinery of the state's legal system, which as recently as 2004 sent seven men to their death at the Southern Ohio Correctional Facility near Lucasville.

    The two executions last year were of James Filiaggi on April 24 and Christopher J. Newton exactly a month later.

    Last year's four death sentences equaled the number in 2006. Between 2000 and 2007, the state had 50 death sentences. That's far fewer than the 123 from 1990 to 1999, according to Dann's report.

    The 2007 report abandoned a practice used by two previous attorneys general by not summarizing cases that were inactive or stalled in either state or federal courts. The 2006 report, for example, listed 22 cases -- including three from Franklin County -- that had been inactive in state or federal courts for at least two years. One had been inactive for 14 years.

    The three inmates who have fully exhausted their federal appeals are Jerome Henderson of Hamilton County, Charles Lorraine of Trumbull County and Gregory Lott of Cuyahoga County. None of the other 13 inmates closest to execution is from central Ohio.

    The report, as in the past, includes information about 184 Death Row cases. Of the inmates, 52 percent are black, the average age is 44.3, and the average time on Death Row is 13.2 years.

    Of the victims, 150 were males and 133 were females. Sixty-two percent were white; 60 were younger than 18.

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    Ohio's solicitor general says death penalty cases in Ohio's courts will move forward now that the U.S. Supreme Court has ruled on a lethal injection case out of Kentucky.

    Bill Marshall says the court's decision will make it difficult for a group of about 20 Ohio inmates to continue arguing that Ohio's lethal injection procedures violate the constitutional ban on cruel and unusual punishment. Marshall handles litigation on behalf of the state.

    The U.S. Supreme Court on Wednesday upheld Kentucky's injection process, which is similar to the one used in Ohio and many other states.

    Some legal experts believe the court's decision wasn't definitive and leaves room for viable cases to be made against lethal injection procedures in other states.

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    Ohio must eliminate two of the drugs used in lethal injection

    ELYRIA, Ohio - A judge in northern Ohio has ruled that Ohio must stop using two of the three drugs administered in lethal injections.

    Today's ruling from Lorain County Common Pleas Judge James Burge (burj) comes in the case of two murder defendants who say the state's execution method doesn't provide the quick and painless death required by Ohio law.

    Two anesthesiologists had testified that one drug (sodium thiopental) would be enough to kill the inmate and that the other two drugs increase the risk of suffering.

    The ruling is likely be appealed to the state Supreme Court.

    Ohio has executed 26 inmates since it resumed putting prisoners to death in 1999.

    http://www.examiner.com/a-1433926~Ju...injection.html

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    Lorain County Prosecutor Dennis Will, in another letter to the Ohio Supreme Court, said he still doesn't think Common Pleas Judge James Burge could be fair if he is a member of a three-judge panel hearing a death penalty case, despite Burge's promise to follow the law.

    Burge had sent a letter to the high court saying he will follow the law if he stays on the panel appointed to hear the capital murder case of Manuel Nieves, 23. Nieves has chosen a bench trial and could receive the death penalty if convicted of killing Sam Walls in a drug-related robbery in August 2004.

    Will's second letter to the court, asking that Burge be removed from the panel, reiterated his arguments that it seems impossible that Burge could impose the death penalty to Nieves because Burge ruled earlier this month that Ohio's lethal injection protocol violates state law. Burge ruled that the protocol violates a law that guarantees a quick and painless death and that the state should only use one drug, instead of three, to kill condemned inmates.

    ''Now he (Burge) contends that he can simply disregard that ruling and impose the death penalty utilizing a three-drug protocol,'' Will said.

    Will also repeated his argument that Burge should be disqualified from the Nieves case because he helped his former client, James Filiaggi, in trying to spare his life before he was executed in February 2007. Filiaggi was sentenced to die for killing his ex-wife in Lorain.

    Common Pleas Judge James Miraldi plans to set Nieves' trial date after the Ohio Supreme Court decides whether or not to disqualify Burge.

    http://www.morningjournal.com/site/n...id=46371&rfi=6

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    July 7, 2008

    Executions get go-ahead, but obstacles still remain


    After more than a year of inactivity, the Death House at the Southern Ohio Correctional Facility has been cleared to gear up for its grim activities once again.

    Ohio now has five convicted killers awaiting execution dates.

    The latest is Jeffrey D. Hill, 44, a Hamilton County man who stabbed his 61-year-old mother to death and stole her money to buy crack cocaine.

    Also on the list: Gregory L. Bey, 52, of Lucas County; Kenneth Biros, 50, of Trumbull County; Richard Wade Cooey III, 41, of Summit County, and Jerome Henderson, 49, of Hamilton County.

    The Ohio Supreme Court, which sets dates for executions, has not yet acted on any of the cases requested by county prosecutors. Typically, the court sets executions 90 days in advance, but the time period has varied.

    The floodgates opened when the U.S. Supreme Court ruled earlier this year that the lethal-injection process used by Ohio and other states is not unconstitutional. While the case was being litigated and decided by the court, Ohio and all other states with death-penalty laws had a de facto moratorium in place. Several states already have resumed lethal injections.

    The last convicted killer executed in Ohio was Christopher J. Newton on May 24, 2007. He was the 26th man put to death since the state resumed capital punishment in 1999.

    Ohio Public Defender Tim Young called all five requests "premature right now" because litigation is pending in federal court. He acknowledged that most deal with technical and timing matters.

    "I think the Supreme Court is doing the right thing by waiting," Young said. "I see us clearing the calendar year before there is an execution in Ohio." He previously said an execution could happen as quickly as August.

    New Attorney General Nancy H. Rogers, the former dean of the Moritz School of Law at Ohio State University, could face an execution before she leaves office following the Nov. 4 election. However, Young said that is unlikely.

    Rogers was appointed by Gov. Ted Strickland to be attorney general following the resignation of Marc Dann in the wake of a scandal over sexual harassment, cronyism and misspending that washed over his office this year. Rogers will step aside shortly after a new attorney general is selected on Nov. 4.

    Asked about her position on the death penalty recently, Rogers sidestepped offering a personal opinion, saying only that her office will "apply the law."

    Another legal pitfall for prosecutors seeking the death penalty will be last month's ruling by Lorain County Common Pleas Judge James Burge that Ohio's lethal-injection process is illegal because it does not guarantee a "painless" death as required by state law.

    Ohio is the only state that has that requirement in law.

    While Burge's ruling applied to two inmates only, defense attorneys are expected to file similar suits to piggyback on the decision.

    Burge said the state should stop using a three-drug combination for executions and switch to a more reliable single anesthetic drug.

    http://www.dispatch.com/live/content...s&cat=&sid=101

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    April 1, 2009

    Ohio Death Row shrinks

    Ohio's Death Row, once bulging with more than 200 condemned killers, is shrinking due to both executions and successful legal appeals.

    The annual Capital Crimes Report released today by Attorney General Richard Cordray showed that 15 people got off Death Row last year.

    Only two of them, Richard Wade Cooey II and Gregory Bryant-Bey, were executed. A third, James Taylor, died of natural causes.

    Kenneth Richey was released as a result of a plea bargain.

    Of the remaining 11 cases, two inmates had their death penalty sentences overturned and the others were sent down to lower courts for re-sentencing or new trials, Cordray's report showed.

    At the same time, just three new death sentences were imposed statewide, one each in Mahoning, Summit and Wood counties. Lower numbers are a continuing trend. While there were 53 death sentence imposed between 2000 and 2008, more than twice that many, 123, were imposed from 1990 through 1999.

    Death Row now has 175 inmates, although some of them are likely to be removed because they are awaiting re-sentencing or new trials. Most are housed at the Ohio State Penitentiary at Youngstown, with some at the Mansfield Correctional Institution.

    The report listed 21 inmates -- up from 16 in the report a year ago -- who are considered closest to execution because they have completed all federal and state legal appeals. None of them are from central Ohio.

    One of them, Brett Hartman of Summit County, was scheduled to be executed yesterday at the Southern Ohio Correctional Facility near Lucasville. However, a three-judge federal panel intervened to stop the execution and Cordray and Summit County Prosecutor Sherry Bevan Walsh decided not to file an immediate appeal to re-start the execution clock.

    The annual update on capital punishment is required by law to be sent by April 1 to the governor, the Ohio Senate president and the Ohio House speaker.

    Cordray reported that 28 capital cases are pending in the state court system, with 118 pending in federal courts. That compares with 44 and 136, respectively, a year ago.

    Ohio has executed 28 men since resuming capital punishment in 1999 after a 36-year hiatus. A national legal fight over the constitutionality of lethal injection, the only method of execution in Ohio and most other states, resulted in an unofficial 18-month moratorium on executions that ended last year when the U.S. Supreme Court cleared the way for lethal injections to resume.

    Several legal issues are still tangling the system, including a case ripe for a decision in U.S. District Court in Columbus that questions the legality of lethal injection. That appeal was filed by Kenneth Biros of Trumbull County, one of those closest to execution.

    DNA testing has also played a role. Federal courts have ordered DNA testing of crime scene evidence in eight cases, and the state has done testing in four others. One condemned killer, Jerome Campbell of Cincinnati, had his sentence commuted to life in prison by former Gov. Bob Taft after DNA testing showed blood on his shoes was his, not the victim's.

    About half of all inmates on Death Row are black, with 45 percent white and about 4 percent another race. The average age of the condemned men, plus one woman, is 44.7 years. The average time spent on Death Row is 13.6 years.

    Of 245 murder victims, roughly half were women, 20 percent were children and two-thirds were white, according to the report.

    http://www.dispatch.com/live/content...s&cat=&sid=101

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    Beginning with its next execution, Ohio will use a revised lethal-injection protocol that allows executioners to use a second dose of sedative to ensure that a condemned inmate is sufficiently unconscious before fatal drugs are injected.

    Ohio has said it previously made sure that inmates being executed were unconscious and, therefore, not in pain when fatal drugs were given, but death-penalty critics have argued that Ohio's process allows the possibility that execution causes pain. A federal lawsuit is challenging Ohio's lethal- injection system.

    Greg Trout, lawyer for the Ohio Department of Rehabilitation and Correction, on yesterday confirmed a report in the (Elyria) Chronicle-Telegram that the procedures had been adjusted as of last week.

    The next execution is planned for June 3, when the state plans to execute 39-year-old Daniel Wilson of Elyria. Wilson was sentenced to death for the 1991 murder of Carol Lutz, whom he locked in the trunk of her car before puncturing the gas tank and setting the car on fire.

    Mr. Trout said the protocol changes amount to amendments of procedures in place. The three drugs used remain unchanged.

    The policy directive says the prison warden will call the condemned inmate's name, shake his shoulder, and pinch his upper arm.

    "If there is no response, it is a pretty clear indicator he is unconscious," Mr. Trout said.

    The policy requires a close inspection of intravenous connections to assure they are adequate to deliver proper doses.

    The revised protocol also requires that the execution team prepare four grams of the sedative, thiopental sodium, instead of the two grams that had been required. Mr. Trout said two grams will be used, as before; the other two grams would be used only if needed.

    The amounts of pancuronium bromide, which follows the sedative and causes paralysis, and potassium chloride, which is the final drug given and induces a heart attack, remain the same as under the state's previous protocol, which had been in effect since October, 2006.

    The state has come under fire from death-penalty opponents and death-row inmates who claim that there is no way to guarantee that an inmate is unconscious and free of pain before the final two drugs are administered.

    http://www.toledoblade.com/apps/pbcs...WS24/905210368

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