Botched execution attempt doesn't preclude a second try, Ohio Supreme Court says
The state of Ohio may execute a convicted killer after botching a former lethal injection attempt, the Ohio Supreme Court has ruled.
In a 4-3 decision (PDF) on Wednesday, the court said a second attempt to execute Romell Broom did not violate the Constitution, report the Associated Press, the Washington Post, Cleveland.com, the Columbus Dispatch and the Legal Profession Blog.
The majority found no violation of double jeopardy, due process and the ban on cruel and unusual punishment.
The court said the lethal injection process begins when the drugs enter the IV line. Because this never happened, there was no double jeopardy. Nor was there a need for a hearing given the “voluminous evidence” about the botched execution. On the Eighth Amendment claim, the majority said Broom had not met his burden that he was likely to suffer severe pain in a second execution. The state’s execution protocol has been amended, “and we cannot assume that the same problems with IV access will befall Broom again,” the opinion said.
Broom was sentenced to death for kidnapping, raping and fatally stabbing a 14-year-old girl in 1984. Broom’s execution in 2009 was stopped after technicians tried for two hours to insert an IV catheter into his veins.
At one point, Broom screamed in pain during an attempted insertion, the majority opinion said. At another point, an inserted catheter lost the vein and the woman who administered it rushed out of the room, telling a security guard who asked about her well-being that she was not OK. As the vein sites became bruised and swollen, Broom covered his eyes and began to cry from the pain.
An assessment by a medical doctor after the process found at least 18 injection sites.
A dissent said the majority’s refusal to allow an evidentiary hearing on the Eighth Amendment claim is “wrong on the law, wrong on the facts, and inconsistent in its reasoning.”
The dissent said the majority noted it’s unclear why the execution team was unable to access Broom’s vein. “The logic appears to be that if he cannot prove why the errors occurred, then he cannot prove that they will recur,” the dissent said. That reasoning “rests on a misapplication of a petitioner’s burden of proof.”
Related article:
ABAJournal.com: “Does Ohio get a do-over execution attempt? State’s high court to decide”
