State v. Broom (Slip Opinion)
146 Ohio St. 3d 60
| Ohio | 2016Background
- Romell Broom was sentenced to death for a 1985 aggravated murder; an execution was scheduled for Sept. 15, 2009.
- During the Sept. 15, 2009 attempt prison medical staff made numerous unsuccessful intravenous (IV) catheter insertions (at least 18 visible sites); saline could not be run reliably and the attempt was halted and stayed.
- Broom brought claims in federal and state courts asserting Eighth Amendment (cruel and unusual punishment) and Double Jeopardy violations and sought postconviction relief in Ohio state court; the trial court denied relief and the court of appeals affirmed.
- The Ohio Supreme Court accepted three propositions: (1) whether the Eighth Amendment and Ohio Constitution bar a second attempt; (2) whether Broom was denied due process (discovery/hearing and appellate adoption of standard); (3) whether Double Jeopardy bars a second attempt.
- The court concluded (majority) that (a) Double Jeopardy did not bar a second attempt because lethal drugs never entered Broom’s body so jeopardy never attached; (b) no due-process violation in denying discovery/hearing given the record and petition; and (c) the Eighth Amendment and Ohio Constitution do not categorically bar a second attempt and Broom failed to show a likely substantial, objectively intolerable risk of severe pain on future attempt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double Jeopardy — does the failed attempt bar a second execution? | Broom: attempt began with reading of warrant/needle insertions; his life was placed in jeopardy so retry is a second punishment. | State: no lethal drug was administered; execution did not commence; statute contemplates punishment when drug is applied. | Held: No double jeopardy — jeopardy attaches when lethal drug is applied; preparatory IV attempts do not constitute punishment. |
| Eighth Amendment — does a second attempt constitute cruel and unusual punishment? | Broom: repeated, painful failed attempts already inflicted extreme suffering; a second attempt risks torture/lingering death and likely protocol deviations. | State: no per se bar to a second attempt (Resweber); Broom must show a substantial, objectively intolerable risk of severe pain and available alternatives; state has amended protocol and shown commitment to compliance. | Held: No per se Eighth Amendment bar; Broom failed to show likelihood of an objectively intolerable risk on future attempt, so Eighth Amendment does not bar a second attempt. |
| State constitutional claim (Ohio Const. art. I, §9) | Broom: Ohio constitution offers independent protection and may forbid a second attempt. | State: Broom’s life was not at risk (no drug administered) and state has remedial measures; continuation would not shock public conscience. | Held: Article I, §9 does not bar a second attempt. |
| Due process / postconviction procedure — entitlement to discovery and an evidentiary hearing; standard of review | Broom: trial court wrongly denied discovery and an evidentiary hearing; appellate court applied a deliberate-indifference standard and should have remanded. | State: postconviction procedure does not guarantee discovery; petitioner failed to proffer needed discovery or show disputed operative facts requiring a hearing. | Held: No due-process violation; trial court properly denied discovery/hearing under R.C. 2953.21 and no remand required; appellate court’s use of deliberate-indifference language not dispositive to outcome. |
Key Cases Cited
- Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) (plurality holding a failed electrocution did not bar a second attempt where drugs/electricity did not effect death)
- Baze v. Rees, 553 U.S. 35 (2008) (plurality setting the substantial risk / objectively intolerable risk framework for method-of-execution Eighth Amendment claims)
- Farmer v. Brennan, 511 U.S. 825 (1994) (Eighth Amendment objective/substantial risk language and standards for failure-to-protect/deliberate indifference)
- Wilkerson v. Utah, 99 U.S. 130 (1879) (identifying examples of cruel punishments and discussing torture/lingering death)
- In re Kemmler, 136 U.S. 436 (1890) (discussing cruel punishments and methods of execution)
- Cooey v. Strickland, 589 F.3d 210 (6th Cir. 2009) (upholding Ohio protocol against certain challenges and discussing IV-access issues)
- State v. Gondor, 112 Ohio St.3d 377 (2006) (standard of review for denial of postconviction evidentiary hearing)