May 23, 2012
AP Legal Affairs Writer
COLUMBUS — The deviations from official death penalty procedures made during an execution last year were minor changes that wouldn’t cause pain to an inmate or violate his rights, the state said in a filing Friday seeking to overturn a judge’s ruling that postponed next week’s execution of a man who stabbed an elderly couple to death 25 years ago.
Attorneys for Charles Lorraine argued that the deviations were important enough to cause concern that Ohio was still not following its own rules for putting inmates to death.
U.S. District Court Judge Gregory Frost agreed, and on Wednesday stopped Lorraine’s execution while acknowledging he didn’t want to be micromanaging Ohio’s death penalty processes.
Frost said the state failed to document the drugs used in its last execution in November and failed to review the medical chart of the inmate put to death.
Attorneys for the state had argued previously that the changes were negligible, and they said Friday the execution should proceed.
“Lorraine failed to make any showing that there is a sure or very likely risk that he will suffer severe pain,” Principal Assistant Attorney General Charles Wille said in a filing with the 6th U.S. Circuit Court of Appeals.
“How does a ‘sure or very likely risk’ of pain and suffering arise from the decision to allow a Team Member other than the Drug Administrator to announce the start and finish times of each injection?” Wille said. “Or from the decision to allow a trained pharmacist, rather than the Team Leader, to document the name, expiration date, and lot number of the execution drugs used?”
The state chose not to appeal a much stronger ruling by Frost in July that ripped the Department of Corrections for what he called haphazard and embarrassing deviations to its own rules. Instead, Ohio rewrote its policies and said it would follow them in the future. With those changes in place, Frost refused to stop the execution of Reginald Brooks in November.
It’s likely the issue will go to the U.S. Supreme Court in last-minute legal wrangling before the Jan. 18 execution.
The way Ohio puts inmates to death has been under scrutiny since 2009 when executioners tried unsuccessfully for nearly two hours to insert a needle into the veins of Romell Broom, sentenced to die for raping and killing a 14-year-old Cleveland girl. Then Gov. Ted Strickland eventually called the execution off and Broom remains on death row, arguing in court filings that Ohio shouldn’t be allowed a second try at executing him.