Monday, October 5, 2009

Sixth Circuit Stays Ohio Execution - Ohio Governor Follows By Granting Two Reprieves Of Execution

In Reynolds v. Strickland (08-4144), the Sixth Circuit granted a time barred stay of execution for Lawrence Reynolds Jr. who was scheduled to be executed on Thursday.  Immediately, the Attorney General of Ohio filed a petition in the United States Supreme Court to review the decision.  However, the Governor of Ohio has since issued a reprieve of execution until at least March for Lawrence Reynolds Jr.  Governor Strickland also granted a reprieve of execution until at least April for Ohio death row inmate Darryl Durr.  An article on can be found here.  The stay, first ordered by the Sixth Circuit and then extended by the Governor, seems to be in line with this New York Times editorial last Friday titled "Botched Executions" which stated: "Ohio should halt any further executions until it conducts a comprehensive study of what is going wrong in its administration of lethal injection and what can be done to ensure that a travesty like Mr. Broom’s attempted execution does not happen again."  The Broom execution was discussed here and here.

Last week, the Ohio Supreme Court denied a similar request filed by Reynolds [see here].  Judge Martin wrote the Sixth Circuit opinion in which Judge Cole "fully concurred" and filed a separate concurring opinion.  Judge Sutton filed a dissenting opinion.  The Sixth Circuit's opinion stated: 
As a general proposition, this claim is currently barred by the twoyear statute of limitations that we put in place in Cooey v. Strickland (Cooey II), 479 F.3d 412 (6th Cir. 2007), reh’g denied en banc, 489 F.3d 775 (6th Cir. 2007). However, after we decided Cooey II, Ohio revised its execution protocol in May 2009 and experienced serious and troubling difficulties in executing at least three inmates, most recently Romell Broom. These disturbing issues give rise to at least two questions: first, whether Ohio is fully and competently adhering to the Ohio lethal injection protocol given (a) their failure to have a contingency plan in place should peripheral vein access be impossible, (b) issues related to the competence of the lethal injection team, and (c) other potential deficiencies; and second, whether these instances present sufficient new, additional factors to revive Reynolds’ Eighth Amendment claims otherwise extinguished by Cooey II.

Broom’s arguments about these very issues will be heard before the Honorable Gregory Frost of the United States District Court of the Southern District of Ohio; to permit this, his execution has been stayed until at least November 30, 2009. Given the important constitutional and humanitarian issues at stake in all death penalty cases, these problems in the Ohio lethal injection protocol are certainly worthy of meaningful consideration. Judge Frost is best positioned to conduct a comprehensive review of these issues for both Reynolds and Broom.

For the foregoing reasons, we hereby GRANT Reynolds’ motion for a stay of execution and REMAND his case to Judge Frost for fact-finding and evidentiary hearings on the merits of his arguments.


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