Ohio Execution Halted After Two Hours Of Failed Attempts

The attempted execution of "53-year-old Romell Broom, who was sentenced to die for the rape and slaying of a 14-year-old Tryna Middleton in 1984" failed today.  [Quote is from the AP article found here].  After two hours of attempting to locate a vein for the lethal injection, the governor issued a reprieve and halted the execution.  Articles can be found here,  here,  and here.  CNN reports that during the failed execution, Mr. Broom's counsel wrote to the Chief Justice of the Ohio Supreme Court and stated:

"I am advised by my co-counsel, Adele Shank, who is at the prison in Lucasville, that the execution team has been attempting since approximately 1 p.m. this afternoon to obtain IV access to a site in Mr. Broom's body in order for the lethal injections to be administered, but without any success.

"It appears ... that these efforts have been going on now for almost two hours, and that the execution team members have evidently now taken a 'break,' " Sweeney wrote.

Broom's execution was initially scheduled for 10 a.m. ET, but was delayed for legal reasons and rescheduled for Tuesday afternoon, Sweeney told CNN.

"When such allegedly skilled professionals have taken this much time without successfully achieving IV access, there comes a point of diminishing returns, and a point when further attempts are cruel and counterproductive," Sweeney wrote to Moyer. "I believe we have reached that point here."

On September 1, 2009, a panel of the Sixth Circuit denied Mr. Broom's challenge to the method of execution used in Ohio.  That decision can be found here.  

On September 11, 2009, the Supreme Court of Ohio REVERSED the Ohio Court of Appeals [for the Supreme Court of Ohio opinion see here; for the Court of Appeals opinion see here] which stayed the execution.  On July 30, 2009 "The court of appeals held that pursuant to two appellate decisions from 1994 and 1995 interpreting Steckman, Broom “was unavoidably prevented from discovery of the facts upon which petitioner must rely to present the claim for relief” in his earlier petitions."  The Supreme Court of Ohio found the analysis by the court of appeals "unpersuasive" and reversed.  Interestingly, Justice Pfeifer appears to disagree with Justice Scalia's recent dissent in In re Davis and stated in a concurring opinion that if Mr. Broom's claim had any merit he would remand to the trial court for hearings regardless of procedural defects.  Justice O'Donnell dissented without opinion other than that he would have affirmed the court of appeals.

On Monday a panel of the Sixth Circuit refused to stay the execution and the court declined to hear the case en banc [see an article here].  Also on Monday,  the governor had denied Mr. Broom's request for clemency [see article here]. 

Yesterday, the United States Supreme Court denied Mr. Broom's Petition for Certiorari and Application for Stay [see here] and today, the Court denied his Petition for Rehearing [see here].  In two other petitions filed by Mr. Broom,  Justice Stevens denied applications for stay today. 

It is possible the failed execution attempt could bring the case back to the Court. The AP reports that:

Richard Dieter, director of the nonprofit Death Penalty Information Center, said he knows of only one inmate who was subjected to more than one execution attempt. A first attempt to execute Willie Francis by electrocution in Louisiana did not work, and he was returned to death row for nearly a year while the U.S. Supreme Court considered whether a second electrocution would be unconstitutional.

He said he expects legal challenges will mean Broom will not face execution again in a week's time.

"I think this is going to be challenged, whether under our standards of decency subjecting someone to multiple executions is cruel and unusual ... whether this is in effect experimenting on human beings, whether or not they're sure what works in Ohio," he said.

Finally, on March 17, 2006, the Sixth Circuit denied Mr. Broom's habeas petition.  That decision can be found here.  A 2002 Ohio Court of Appeals decision relating to a writ of prohibition petition filed by Mr. Broom can be found here.

Federal Judicial Workload Reports To Be Released And Magistrate Judges Can Share Courtrooms

The Judicial Conference of the United States voted to release judge specific workload reports.  Additionally, they voted to allow the sharing of courtrooms by magistrate judges.  The press release can be found here.  Thanks to How Appealing.

NY Times Articles: Jury Selection By Judge Rosenberg And Florida Bar Member Punished For Criticizing Judge On Blog

The NY Times has two articles this month relating to Broward County, Florida legal issues.  The first, published on September 1, 2009, is titled "Call to Jury Duty Strikes Fear of Financial Ruin" and discusses jury selection by Broward County Circuit Court Judge Robert A. Rosenberg [Who is currently in the fifth week of a jury trial].  The second is titled "A Legal Battle: Online Attitude vs. Rules of the Bar" and relates to the disciplinary proceedings after a member of the Florida Bar criticized a Broward County Judge on a blog.  Both articles are written by John Schwartz.

Thanks to the JAA Blog for the links.

Google Fast Flip, Justice O'Connor On Judicial Elections And Articles By Toobin And Rosen

Google has a new service called Google Fast Flip, and Business Week has an article about it here.  It looks interesting. The article states:  "Google Inc. is testing a new format that is supposed to make reading online stories as easy as flipping through a magazine, a shift that eventually could feed more advertising sales to revenue-starved publishers."

Retired Supreme Court Justice Sandra Day O'Connor spoke out against judicial elections in this AP article. "She told a sold-out audience that threats to judicial independence are rising exponentially as more and more money pours into judicial races around the country."

Jeffrey Toobin wrote this article titled "Bench Press: Are Obama’s judges really liberals?"

Jeffrey Rosen has this op-ed in the New York Times titled "The Trial of John Roberts."

Employer Must Pay For Weight Loss Surgery - Indiana Court of Appeals and Supreme Court of Oregon

There are a number of stories about this published decision from the Indiana Court of Appeals in the case of PS2 LLC d/b/a Boston’s Gourmet Pizza v. Childers (No. 93A02-0902-EX-176).  The Associated Press reports here that the court "ruled that a pizza shop must pay for a 340-pound employee's weight-loss surgery to ensure the success of another operation for a back injury he suffered at work."  The article continues:

Boston's The Gourmet Pizza must pay for lap-band surgery for Adam Childers, a cook at the store in Schererville, under last month's Indiana ruling that upheld a 4-3 decision by the state's workers' compensation board.

Childers, who was then 25, weighed 340 pounds in March 2007 when he was accidentally struck in the back by a freezer door. Doctors said he needed surgery to ease his severe pain, but that the operation would do him no good unless he first had surgery to reduce his weight, which rose to 380 pounds after the accident.

On August 27, 2009, the Supreme Court of Oregon reached the same result in affirming the lower court.  The Supreme Court of Oregon's decision can be found here wherein they held:

We emphasize that the sole question before us is whether the gastric bypass surgery was "directed to" claimant's current arthritic knee condition, which was caused in major part by his compensable 1976 injury. ORS 656.245(1)(a) does not limit the compensability of medical services simply because those services also provide incidental benefits or help to treat other medical conditions that were not caused by the compensable injury. The fact that the gastric bypass also treated claimant's morbid obesity as a necessary incident of effectively treating his knee condition does not affect the resolution of the compensability of his medical services claim. Because the gastric bypass was "directed to" claimant's current arthritic knee condition, we need not express an opinion as to the classification or cause of claimant's morbid obesity. It is not relevant to the issue before us.

Second DCA Regarding The Release Of Negligence Claims

In Abis v. Tudin, D.V.M. (2D08-119), the Second District reviewed a veterinary malpractice action.  Interestingly, the Per Curium opinion was written by "CASANUEVA, C.J., DAVIS, J., and CANADY, CHARLES T., ASSOCIATE JUDGE."  However, Justice Canady was appointed the Florida Supreme Court on August 28, 2008 and "took office" at the Supreme Court on Septmeber 8, 2008 - more than a year ago.  I imagine the only impact is a recusal in the very unlikely event the Supreme Court somehow ended up with the case.  Back to the opinion, the court held:

Abis first contends that because the release does not expressly reference acts of negligence, it is unenforceable...Abis's reliance is misplaced, however, because the instant case involves a postclaim release as distinguished from a preclaim exculpatory clause...The rule that a release of claims arising from events that have already occurred when the release is entered need not specifically reference acts of negligence is supported by Hardage Enterprises v. Fidesys Corp., 570 So. 2d 436, 437 (Fla. 5th DCA 1990), where the release at issue was entered by the parties after a dispute arose between them regarding alleged deficiencies in a building construction project. The court stated that "[i]n the instant case, we are not concerned with a release from future acts of negligence, but from past acts." Id. at 438. The court held that "[t]here are no words of art required in a release if the intent of the parties is apparent from the language used. No Florida appellate court has ever held that the word 'negligence' must be included in a release for it to bar negligence claims." Id.

***

Abis's next argument is that the release is unenforceable because it did not specifically state that it covered the appellees. Abis's argument would be well taken if this case involved a release containing a handwritten portion specifically naming one party and a typewritten portion generally referencing "any other person, corporation, association or partnership."...However, in this case, the release was completely typewritten. The reference in the release to "all other persons, firms, corporations and entities" clearly applies to appellees for claims resulting from "the sale, use or administration of ProHeart 6."

Two Appeals Dismissed Sua Sponte - Order Below Never "Rendered"

In two cases on Friday, U.S. Bank National Association v. Bjeljac (5D09-2809)  and  Wells Fargo Bank, N.A. v. Lupica (5D09-2902), the Fifth District sua sponte dismissed appeals for lack of jurisdiction.  In both, the court noted that the order being appealed was never actually rendered by the trial court.  "To invoke the jurisdiction of an appellate court, the order for which review is sought must be rendered by the lower court. Fla. R. App. P. 9.110(b). An order is rendered when it is reduced to writing, signed and filed with the clerk of the trial court. Fla. R. App. P.  9.020(h). A rubber-stamped order on a document that has already been filed is, at best, confusing. When the document does not receive a second date stamp from the clerk, there is nothing on the face of the appellate record to establish that the order was ever rendered." [The quoted language appears in both decisions, however, this was cut from the Wells Fargo decision.]

Also in both decisions, the court stated:

We also have concerns about the summary disposition of U.S. Bank’s motions. We are mindful of the significant workload faced by Florida’s trial judges, particularly with the flood of foreclosures inundating the court system and the staff reductions necessitated by budget shortfalls. Nonetheless, for an appellate court to provide meaningful review of a trial court order, particularly when the trial court possesses significant discretion, some indication of the reasons underlying the trial court’s ruling is helpful. “It is not the function of an appellate court to cull the underlying record in an effort to locate findings and underlying reasons which would support the order.” Jacques v. Jacques, 609 So. 2d 74, 75 (Fla. 1st DCA 1992). Here, the trial court’s “denied” stamp does not help us determine if the trial judge abused his discretion or not. Some basis for the ruling would be instructive both to the parties and this Court.

Eleventh Circuit On State Law Is Merely A Guess

In Lefrere v. Quezada (09-10024), the Eleventh Circuit reminds us that when they make a ruling regarding state law, it is merely a guess.  The court's opinion began:

Because state supreme courts are the final arbiters of state law, “when we write to a state law issue, we write in faint and disappearing ink,” and “once the state supreme court speaks the effect of anything we have written vanishes like the proverbial bat in daylight, only faster.”

Massachusetts High Courts Quashes Unconstitutional Search Of Boston College Dorm Room

This is not a new story, however, just came to my attention from an article published by the BC Heights today.  The story indicates that "Last March 30, the Boston College Police Department (BCPD) entered Riccardo Calixte's, BC '09, dorm room and seized an iPod Touch, a disassembled Blackberry cell phone, a Dell Inspiron, a MacBook laptop, and other computer-related devices."  The Massachusetts Supreme Judicial Court has since quashed the search [see here].

The Citizen Media Law Project described the facts as follows:  

In January of 2009, soon after Riccardo Calixte and his (now ex) roommate suffered “domestic issues,” the roommate made certain allegations to Boston College Detective Kevin Christopher, including that Calixte had “hack[ed] into the B.C. grading system . . . to change grades for students” and had “a cache of approximately 200+ illegally downloaded movies as well as music from the internet.” On March 30, Detective Christopher applied for, and was granted, a search warrant to seize Calixte’s computers, electronic devices, and digital storage devices. In his application for the warrant, Christopher also alleged that Calixte was the author of a mass email to the Boston College community that “outed” his ex-roommate as gay and included a link to a profile on a gay online-dating site created in his ex-roommate’s name.

You can also visit the Citizen Media Law Project database entry here, which provides an extensive summary of the case. 

After the seizure, Calixte teamed with the Electronic Frontier Foundation and Fish & Richardson - who took the case pro bono.  After the trial court denied a motion to quash the search warrant, Justice Margot Botsford of the Massachusetts Supreme Judicial Court reversed the decision and quashed the warrant.  The decision from Massachusett's High Court can be found here.

Fish & Richardson summarized the decision here and stated:

The Court found that the search and seizure was unlawful because the affidavit failed to establish probable cause that a crime had been committed, or that evidence of a crime existed in Mr. Calixte's computer equipment. The affidavit failed to establish that any grades had been hacked by anyone, much less by Mr. Calixte. Although the affidavit contained an unsubstantiated report from an alleged eyewitness (the former suite mate), the affidavit failed to explain when the alleged incident occurred, where it occurred, and how (and with what equipment) it was accomplished. These are all facts that any actual eyewitness would have been able to supply. Moreover, the affidavit also lacked evidence that the police ever tried to confirm with the College's computer administrators and professors that such a breach had occurred before searching Mr. Calixte's room.

 The Court also rejected the Commonwealth's theory that spreading rumors by email could constitute the crime of unauthorized access to a computer system. To the contrary, the Court noted that such a reading of the statute would "dramatically expand [the law's] appropriate scope."

"This case establishes two important legal principles at the intersection of criminal law and computer technology," said Larry Kolodney, a principal in Fish & Richardson's Boston office and chair of the firm's pro bono committee who served as lead counsel in the case. "First, it clearly rejects the concept, which has found some support in other jurisdictions, that violating the fine print of a computer use policy is a crime. This is an important decision that should serve as a bulwark against similar efforts at prosecutorial overreaching in the online world. In addition, the case provides important safeguards against arbitrary searches of computers and other digital devices - devices that often contain our most private information - based merely on the flimsy accusations of someone with an axe to grind."