STATE OF OHIO v. ROMELL BROOM
No. 96747
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 16, 2012
[Cite as State v. Broom, 2012-Ohio-587.]
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-196643
JUDGMENT: AFFIRMED
BEFORE: S. Gallagher, J., Jones, P.J., and Keough, J.
RELEASED AND JOURNALIZED: February 16, 2012
Timothy F. Sweeney
Law Office-Timothy Farrell Sweeney
The 820 Building, Suite 430
820 West Superior Avenue
Cleveland, OH 44113
S. Adele Shank
Law Office of S. Adele Shank
3380 Tremont Road
Second Floor
Columbus, OH 43221-2112
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Matthew E. Meyer
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Defendant-appellant Romell Broom appeals the trial court‘s decision denying Broom‘s petition for postconviction relief. For the following reasons, we affirm.
{¶3} Broom was transported to SOCF on September 14, 2009, in preparation for the next-day execution. Upon his arrival, the medical personnel conducted a physical examination of Broom, including the first of three, Protocol-required, venous assessments. These assessments were intended to monitor whether an intravenous line (“IV“) could be placed and maintained during the execution. The staff noted potential concerns over the accessibility of Broom‘s veins in his left arm, but noted that his right arm would be amenable to IV access. Later that same day, the medical staff performed the second venous assessment, but only noted the fact that the assessment was completed. The third required assessment was either never performed or never recorded. It is undisputed that none of the completed assessments indicated that Broom‘s left-arm veins would be anything other than problematic, and none of the assessments indicated that the execution should be delayed.
{¶5} At this point, a SOCF staff doctor who was not a member of the execution team appeared to assist the team in placing the IV catheters. The doctor tried placing the IV catheters on the top of Broom‘s foot and over his ankle bone. Neither attempt was successful, and Broom contends that the needle was pushed into his ankle bone. Almost two hours into the preparation, the execution team took another break and indicated that establishing IV access that day was not feasible. The director contacted Governor Strickland‘s office, and the governor signed a seven-day reprieve ending the execution attempt. During the course of the two hours, Broom received approximately 20 puncture wounds, some causing Broom to audibly react.
{¶6} Broom filed various motions and petitions in both state and federal court in response to the failed execution attempt. In Cuyahoga County C.P. No. CR-196643, Broom filed a motion for postconviction relief pursuant to
{¶7} Before addressing the merits of Broom‘s appeal, we are compelled to make the following observation. As noted by the Ohio Supreme Court, “‘[r]easonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable.‘” Scott v. Houk, 127 Ohio St.3d 317, 319, 2010-Ohio-5805, 939 N.E.2d 835 (Stratton, J., concurring), quoting Baze v. Rees, 553 U.S. 35, 61, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). As judges, we have our own personal concerns about capital punishment. Capital punishment, however, is constitutional, and the “Constitution does not demand the avoidance of all risk of pain in carrying out executions.” Id. As Justice Frankfurter aptly noted, courts “must abstain from interference with State action no matter how strong one‘s personal feeling of revulsion against a State‘s insistence on its pound of flesh.” Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 471, 67 S.Ct. 374, 91 L.Ed. 422 (1947) (Frankfurter, J., concurring). We are not debating the efficacy of Ohio‘s execution system or the possibility of eliminating all pain from the execution process. Our duty is to uphold the law and the Constitution. While we are conscious of the gravity of the matter before us, we can only address the issues properly before us.
Standard of Review
{¶9} “[A] trial court‘s decision granting or denying a postconviction petition filed pursuant to
{¶10} Broom‘s fifth assignment of error provides as follows: “The trial court erred when it denied Broom declaratory relief under
{¶11} Broom sought to overturn his death sentence as being unconstitutional through his petition for postconviction relief. His request for declaratory relief seeks nothing more than a declaration of the same and, in fact, was raised in the alternative. “A declaratory judgment action, however, cannot be used as a substitute for an appeal or as a collateral attack upon a conviction. Declaratory relief ‘* * * is [not] a substitute for appeal or post conviction remedies.‘” Moore v. Mason, 8th Dist. No. 84821, 2004-Ohio-1188, 2005 WL 628512, ¶ 14, quoting Shannon v. Sequeechi, 365 F.2d 827, 829 (10th Cir.1966). Because his request for declaratory relief seeks the same remedy advanced through his petition for postconviction relief, we find that any declaratory relief sought was duplicative and, therefore, improper. The trial court did not err in denying Broom declaratory relief, and his fifth assignment of error is overruled.
{¶12} Broom‘s first assignment of error provides as follows: “The trial court erred when it denied Broom an evidentiary hearing on his post conviction and declaratory judgment claims.” Broom argues that because of the five volumes of supporting documentary and other evidence filed with his petition, he is entitled to a hearing. The five volumes largely consist of the publically available evidence used in the course of
{¶13} A trial court‘s decision to deny a postconviction petition without a hearing is also reviewed under the abuse of discretion standard. State v. Abdussatar, 8th Dist. No. 92439, 2009-Ohio-5232, 2009 WL 3155131, ¶ 15.
Any person who has been convicted of a criminal offense * * * who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
The trial court must determine whether there are substantive grounds for relief, when considering the supporting affidavit and other documentary evidence filed in support of the claim, prior to setting the matter for hearing.
{¶14} Broom cites State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975), in support of his argument,
which held that where the petitioner‘s claim is one which cannot be determined by an examination of the petition, files, or records of the case and which states a substantive ground for relief, the Court should proceed to a prompt evidentiary hearing * * *. (Emphasis added.) State v. Rembert, 8th Dist. No. 49422, 1985 WL 8124 (Oct. 10, 1985), citing Milanovich.
Because that proposition of law is stated in the conjunctive, there are two conditions that must be satisfied prior to the court holding a hearing: the petitioner must state substantive
{¶15} In this case, the state is not disputing the facts as advanced by Broom, leaving no issue of fact to be resolved at an evidentiary hearing. Broom also argues that he would have presented additional evidence at the hearing, but does not specify what additional evidence would have been introduced beyond the five volumes of documentary evidence filed. In fact, Broom concedes that “much of” the outside evidence was before the trial court, including the deposition testimony of the public members responsible for carrying out Broom‘s execution attempt and Broom‘s affidavit supplanting his sealed deposition testimony. Further, the parties attached copies of Judge Gregory Frost‘s lengthy federal court opinions, which largely recounted any additional evidence Broom would have included at a hearing. In fact, Broom conceded at oral argument that the trial court had enough evidence before it to find in his favor.
{¶16} We recognize this is a case of first impression and potentially of national importance. On the face of the petition and given the magnitude of the issues presented, we understand Broom‘s insistence on getting his day in court. It remains, however, that there are no factual disputes to resolve at an evidentiary hearing. The facts are known and accepted by the state. In this instance an evidentiary hearing was not required, further highlighted by the fact that the trial court‘s opinion focused on legal issues. The trial court based its decision on the undisputed and voluminous documentary evidence
Constitutional Issues
{¶17} Broom‘s fourth assignment of error provides: “The trial court erred when it found that a second attempt to execute Broom would not violate the prohibitions against being placed twice in jeopardy for the same offense in the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.” Broom‘s fourth assignment of error is without merit.1
{¶18} Broom sought the overarching declaration that a second execution attempt would violate either the Fifth Amendment Double Jeopardy Clause or Eighth Amendment prohibition against cruel and unusual punishment per se. The Supreme Court “has held that the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Hudson v. United States, 522 U.S. 93, 98-99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997).
{¶19} Broom contends the third abuse, multiple punishments, is implicated in his case because it was through the state‘s failures that his execution could not proceed. We
{¶20} Broom was sentenced to death. The process he complains of, and what he endured was through the preparation to carry out a lawful sentence. The parties disagree on this point. The state argues the execution begins with the injection of lethal drugs. See Resweber, 329 U.S. at 477, 67 S.Ct. 374, 91 L.Ed. 422 (Rutledge, J., dissenting) (acknowledging that the Louisiana Legislature requires a single, continuous application of electricity to effectuate the death sentence as the basis for remanding the case to the trial court for a hearing on the evidentiary dispute regarding whether electricity was applied to the inmate). Broom essentially contends the preparation of the IV catheter constitutes the beginning of the execution attempt.
{¶21} In Resweber, an inmate sentenced to death was placed in the electric chair. When the executioner “threw the switch,” the device malfunctioned and failed to deliver the necessary voltage to execute the inmate. The state of Louisiana terminated the execution attempt and granted a six-day reprieve. With a divided Supreme Court, four justices agreed that Louisiana‘s conduct of subjecting the inmate to multiple execution attempts did not violate the Fifth or Eighth Amendments. Four justices dissented, but
{¶22} The Resweber dissent distinguished the application of electricity to the inmate from merely placing the inmate in the electric chair with no application of electricity. Resweber at 477. At the time, the Louisiana statute required a continuous application of electricity to cause the inmate‘s death. Id. The import was that the Louisiana state officials had a statutory duty to ensure that once the electricity was applied, that application must be continuous until the inmate‘s death. Id. at 476. In Broom‘s case, Ohio law,
{¶23} The state, therefore, has not yet punished Broom so as to implicate the Fifth Amendment prohibition against punishing an individual twice for the same crime. An inmate can only be put to death once, and that process legislatively begins with the application of the lethal drugs.
{¶24} For this same reason, we also hold that a second execution attempt cannot constitute cruel and unusual punishment per se solely on the fact that the inmate must endure a second execution attempt. We must decline to reach such a definitive conclusion. The state needs discretion in fulfilling Ohio‘s death penalty statutes. To hold to the contrary could invite the sort of needless pain and suffering that Broom seeks to avoid and likely would create a self-fulfilling prophecy. If the state were permitted only one chance at fulfilling its duty to execute an inmate, the pressure to complete the task could lead to violations of the Eighth Amendment. Therefore, in a case such as this, we must make the overarching declaration that multiple execution attempts do not implicate the Fifth Amendment‘s prohibition against double jeopardy or the Eighth Amendment per se.
{¶26} Broom‘s second assignment of error provides: “The trial court erred when it found that the cruel and unusual punishment clauses of the Eighth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 9 and 16 of the Ohio Constitution do not bar another attempt to execute Broom.” Broom‘s second assignment of error is without merit.
{¶27} Broom primarily argues that the state willingly strayed from the Protocols, causing his execution attempt to be aborted, and that the repeated attempts to establish the IV access resulted in unconstitutional suffering.2 According to Broom, these aberrations
{¶28} This is an issue of first impression in Ohio and nearly first impression in the United States. Broom v. Bobby, N.D.Ohio No. 1:10-CV-2058, 2010 WL 4806820 (Nov. 18, 2010). Never before has the state failed to execute an inmate after beginning the execution process. Id. There also is little federal jurisprudence on this issue. In Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422, the only other case dealing with a second execution attempt,
[t]he Supreme Court held * * * that the Fifth and Eighth Amendments do not preclude a state from a second attempt at an execution[,] * * * however, ”Resweber is a plurality decision in which there were not five justices who found that a second execution attempt did not offend the Eighth Amendment.” Id., quoting Broom v. Strickland, S.D.Ohio No. 2:09-CV-823, 2010 WL 3447741 (Aug. 27, 2010).
{¶30} Before addressing this framework, it bears repeating that the Supreme Court has “never invalidated a State‘s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 553 U.S. at 48, 128 S.Ct. 1520, 170 L.Ed.2d 420. In reviewing the history of the prohibition against cruel and unusual punishment, the Supreme Court noted that “[w]hat each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of pain-‘superadd[ing]’ pain to the death sentence through torture and the like.” (Emphasis added.) Id. at 48. An isolated occurrence during the execution process does not imply cruelty. Id. at 50. The Supreme Court
observed [that] “[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there [is] something inhuman and barbarous, something more than the mere extinguishment of life.” Id. at 49, citing In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890).
{¶32} We begin our analysis with Broom‘s post hoc facial challenges to Ohio‘s Protocols, specifically, Broom‘s complaint that the state failed to implement backup plans to humanely execute inmates with poor venous assessments, allowed the execution preparation to proceed for an excessive length of time, and engaged in sporadic attempts to establish the IV catheter while allowing the execution team to take breaks. The arguments essentially addressed the Protocols as they existed at the time of his execution date. The Protocols did not allow for a backup plan of execution or for a set time-limit within which to establish the IV catheters.
{¶33} Broom argues that the executions of Joseph Clark and Christopher Newton highlighted the state‘s awareness that establishing and maintaining IV catheters on certain inmates could be problematic and therefore the state should have had a backup execution method in place. In Clark‘s case in particular, the state attempted to establish an IV catheter 17 to 18 times and only successfully established one. During Clark‘s execution, it became clear that the one IV catheter established was not operating properly when the
{¶34} Broom‘s challenge to the Protocols, in regard to the lack of a backup plan, should have been addressed prior to the execution attempt. We cannot look back at the constitutionality of a particular method after a problem arises. The appropriate time to challenge the method of execution is prior to the execution.
{¶35} More important, courts at every level continuously upheld Ohio‘s lethal injection procedure prior to the September 15 execution attempt. See Cooey v. Strickland, 610 F.Supp.2d 853 (6th Cir.2009); Cooey v. Strickland (6th Cir.2009), 589 F.3d 210, 227-228 (additionally concluding that the lack of a prescribed limit for the execution team to search for accessible veins is not unconstitutional); Baze, 553 U.S. at 35, 128 S.Ct 1520, 170 L.Ed.2d 420 (upholding Kentucky‘s lethal injection procedure, which was similar to Ohio‘s three-drug injection method). No reviewing court required any state, much less Ohio, to include a backup plan in order to pass constitutional scrutiny.
{¶36} Finally, Broom claimed that the state‘s allowing the execution preparation to proceed for an excessive length of time and engaging in sporadic attempts to establish the
The appropriate team member(s) shall make every effort to establish IV sites in two locations, and shall take the amount of time necessary when pursuing this objective. * * * The team members who establish the IV sites shall be allowed as much time as is necessary to establish two sites. If the passage of time and the difficultly of the undertaking cause the team members to question the feasibility of establishing two or even one site, the team will consult with the warden.
Therefore, in essence, these claims are also facial challenges to the Protocols, which should have been addressed prior to the attempt to execute Broom.
{¶37} Nonetheless, in Baze, the Supreme Court held that the one-hour time limit established by the Kentucky protocols was not excessive and noted that the execution team was not required to use the one-hour limit to establish the IV catheters continuously. Baze at 55. Baze is instructive. It first encourages the practice of attempting to locate veins in short blocks of time rather than continuously. Implicit in allowing sporadic attempts to establish the IV catheters is the concept that multiple “needle sticks” would be necessary.
{¶38} Broom also offered no basis to declare a two-hour time limit excessive. We see no reason to distinguish Broom‘s circumstances to the one-hour time limit upheld in Baze. Id. In that case, the one-hour time limit held to be constitutionally valid could be one hour of continuous or sporadic attempts to establish the IV catheter. While certainly there must be a limit imposed on the amount of time spent establishing the IV catheters, in light of Baze, we find that two hours of sporadic attempts to place and
{¶39} We next turn to Broom‘s challenges to the state‘s actions during the September 15, 2009 execution attempt. Broom asks us to review the facts of his case and divine that the violations of Protocol and the process of establishing the IV catheters was cruel and unusual punishment. Broom argued that what he suffered at the hands of the “awesome power of the state” constitutes cruel and unusual punishment because of his subjective suffering, an ordeal that could have been remedied by following the Protocols. The state disagreed and argued that in determining the validity of Ohio‘s and other states’ execution methods, courts routinely discount the possibility of errors as being part of the process when resolving facial challenges. See State v. Webb, 252 Conn. 128, 143, 750 A.2d 448 (2000) (noting that the fact several needle insertions may be needed to effectuate a lethal injection does not render the procedure to be violative of the Eighth Amendment).
{¶40} Neither position offers a workable standard in the unlikely event that the state finds itself in a similar situation. Courts must be able to review violations and errors in the execution process and cannot circumvent tough issues on the theory that problems could occur during the execution process. The fact is that Broom‘s execution
{¶41} Relying on the parties’ arguments and authority presented, the trial court put much emphasis on Resweber and its progeny dealing with the method of execution.4 Resweber offers a workable framework, however based on a different line of cases. Resweber led to multiple branches of legal theory, two of which are pertinent to our discussion: (1) Resweber and its progeny dealing with the method of execution, for example, Cooey v. Strickland, 589 F.3d 210 (6th Cir.2009), and Baze, 553 U.S. at 35, 128 S.Ct 1520, 170 L.Ed.2d 420; and (2) Resweber and its progeny dealing with a condition-of-confinement claim, for example, Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).
This is an important inquiry. If a court could never look beyond the facial constitutionality of an execution protocol when presented with evidence of improper administration, states could simply adopt constitutionally sufficient protocols * * * then flout them without fear of repercussion. Dickens v. Brewer, 631 F.3d 1139, 1146 (9th Cir.2011).
{¶43} In Resweber, the Supreme Court, in reviewing the case, assumed that the
The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. The fact that an unforeseeable accident prevented the prompt consummation of the sentence cannot, it seems to us, add an element of cruelty to a subsequent execution. There [was] no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution. (Emphasis added.) Id. at 464.
{¶44} Justice Frankfurter, the critical fifth vote, agreed with the result, although concluding the
{¶45} The repeated references to accidents and innocent misadventures in Resweber set the foundation of a subjective state-of-mind requirement on state acts or omissions. Even the Resweber dissent recognized such. The dissent focused on the Louisiana statute that required a single, continuous application of electricity to cause the inmate‘s death. Id. at 477 (Rutledge, J., dissenting). The dissent would have found that the second attempt would require the executioner to intentionally apply a second application of electricity, which would have violated Louisiana law.
{¶46} The Supreme Court later officially recognized that “[b]ecause the first [execution] attempt [in Resweber] had been thwarted by an ‘unforeseeable accident,’ the officials lacked the culpable state of mind necessary for the punishment to be regarded as ‘cruel,’ regardless of the actual suffering inflicted.” Wilson, 501 U.S. at 297, 111 S.Ct. 2321, 115 L.Ed.2d 271; Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Therefore, in order to determine whether deviations from the Protocols or the subjective pain endured by Broom from the countless “needle sticks” constitutes cruel and unusual punishment, we must inquire into the state actor‘s state-of-mind. “The source of the intent requirement is * * * the
{¶47} Broom‘s case is more analogous to Resweber and its progeny dealing with a condition-of-confinement claim, which challenges deprivations that were not specifically part of the punishment but were nonetheless suffered during execution of the punishment. Wilson at 297. The Protocols are specifically drafted to ensure that Ohio‘s execution procedures satisfy the
{¶48} Because we must review the intent of the state official, we must determine what standard to apply in resolving whether the state official had the requisite intent to cause unnecessary pain. In order to review this issue, we adopt the “deliberate indifference” standard developed for conditions-of-confinement claims and first articulated in Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251. Wilson at 303.5 “[D]eliberate indifference to [the] needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the
{¶49} The deliberate indifference standard, while entailing something more than negligence, is less than acts or omissions for the very purpose or intent of causing harm or with the knowledge that harm will result. Brennan at 835. On this point, the trial court was correct to note that there is a “continuum of possible events” and at some point along that continuum, certain circumstances will lead to constitutional violations. “With deliberate indifference lying somewhere between the poles of negligence at one end and purpose, intent, or knowledge at the other, [courts] have routinely equated deliberate indifference with recklessness.” Id. at 836. Thus, the term “deliberate indifference” was defined as “requiring a showing that the official was subjectively aware of the risk.” Id.
{¶50} In Brennan, the Supreme Court specifically addressed the argument that the term deliberate indifference could involve an objective inquiry. In that case, the petitioner challenged whether the prison official‘s deliberate indifference to his safety constituted cruel and unusual punishment. Id. at 828. Brennan teaches that the criminal recklessness standard is the appropriate standard and differentiated the civil recklessness standard that uses a more objective inquiry. Id. at 836. Therefore, in order to determine
{¶51} Broom‘s argument claims the state failed to follow its Protocols and those violations led to added anguish during the September 15, 2009 execution attempt. Broom identified several deviations that caused his suffering: specifically, the state failed to conduct the third venous assessment; failed to ensure proper training of the execution team in accordance with the Protocols; allowed a non-execution team member to assist in the execution preparation; and attempted to establish the IV catheters an excessive amount of times. All these deviations were alleged to add to the subjective pain Broom endured in the repeated attempts to establish the IV access.
{¶52} Even when we presume that the deviations occurred and that Broom subjectively suffered physical and emotional distress, Broom‘s entire focus is on the undesirable outcome of the failed execution attempt based on the objective standard that any deviation from the Protocols or approximately 20 attempts to establish the IV catheters led to a constitutional violation. We must instead focus on the subjective mind-set of the state officials.6 Indeed, Broom does not allege any deliberate
{¶53} The burden of stating a substantive ground for relief in his petition for postconviction relief rested with Broom. That an unfortunate outcome manifested after several violations of the Protocols or that Broom had to endure multiple attempts to establish the IV catheter is insufficient, standing alone, to substantiate the claim that the state officials in charge of effectuating Broom‘s death sentence demonstrated a deliberate indifference to Broom‘s rights. We by no means condone the state‘s failure to abide by the very protocols that ensure the execution process comports with the
{¶54} Broom‘s third assignment of error provides: “Broom‘s rights under
{¶55}
{¶56} To the contrary, one court has already determined that the statute did not create a liberty and property interest in a quick and painless execution protected by the
Conclusion
{¶57} The trial court did not abuse its discretion in denying Broom‘s petition for postconviction relief based on the voluminous, undisputed evidentiary submissions. In order to establish that the first execution attempt violated the
{¶58} The decision of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, J., DISSENTS WITH SEPARATE OPINION
KATHLEEN ANN KEOUGH, J., DISSENTING:
{¶59} I respectfully dissent. I would sustain Broom‘s first assignment of error and remand the matter to the trial court to conduct a hearing on Broom‘s petition. The decision to hold a hearing on a postconviction petition lies with the trial court, the gatekeeper of the evidence, and the trial court‘s decision to not hold a hearing will not be disturbed absent an abuse of discretion. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶ 60.
{¶60} I agree with the majority that the state did not dispute the facts presented by Broom and that Broom‘s petition includes voluminous records, depositions, affidavits, and federal court opinions. However, I disagree with the majority‘s conclusion that an evidentiary hearing was not required because “the trial court‘s opinion focused on legal issues.”
{¶61} First, the trial court did not address all the legal issues raised in Broom‘s petition. His petition challenged that a subsequent execution attempt will be a violation of the
{¶62} I recognize that the trial court could reach the same conclusion after hearing on remand. However, and because the record is created and established at the trial court level for all subsequent reviewing courts, the trial court should develop the most thorough record possible to afford meaningful appellate review, especially considering that the issues presented in this case are those of first impression in Ohio. Accordingly, I respectfully dissent.
{¶63} Although I would reverse the trial court and remand the matter for a hearing, I am compelled to comment on the majority‘s decision to adopt the “deliberate indifference” standard in determining whether the State‘s violations of its Protocols during its execution attempt violate the
{¶64} The majority‘s opinion thoroughly discusses the issues, legal history, and rationale for the standard. However, I disagree with the majority‘s decision to apply this standard to the facts of this case and to Broom‘s petition as submitted. I would remand the matter to the trial court to allow the parties to brief the issue and provide any relevant evidentiary materials addressing the “deliberate indifference” standard. I find that
{¶65} The majority repeatedly stresses that Broom did not satisfy his burden of stating substantive grounds for relief on his claim that the state acted with “deliberate indifference” in its execution attempt. Specifically, the majority concludes that “* * * Broom has failed to allege that the state officials acted with the requisite mental state and therefore the trial court did not err in denying his petition for postconviction relief.” I find that it is difficult to set forth allegations and facts to satisfy a standard that has yet to be adopted by a court on a case and issue of first impression. By applying this standard retroactively, finding that “Broom failed to allege” the requisite facts to prove this standard, the majority deprives Broom of his day in court and a fair opportunity to comply with this court‘s newly-adopted standard of reviewing such
{¶66} Lastly, the magnitude of the ultimate outcome of this case cannot be overstated. It has been suggested that it was the State‘s failure to follow its own Protocols in this case that resulted in the botched execution attempt of Broom and the subsequent re-writing of its Protocols. It is my hope that the issue before this court is one that no other death row inmate will have to raise before any other court. However, history has a habit of repeating itself. In 1946, Willie Francis first raised the issue in Louisiana, and in 2009, history repeated itself with Romell Broom in Ohio. Given the
{¶67} I agree with the majority that personal feelings need to be put aside when courts consider issues pertaining to the death penalty; however, I am mindful that the State‘s repeated failure to follow its own Protocols is personal to the families of the victims and the inmate for closure. The people of the state of Ohio, and specifically the families of victims, deserve to feel confident that if the State is going to continue to impose the death penalty, it will perform its obligations error free.