*1 Respect Legal ERROR Has No to the Been Shown by the EPA Evidence Consideration tax law, Veolia contends proposition second Under its during it submitted to transmit the documentation duty had commissioner But our EPA for evaluation. tax to the department before the hearing process reject this contention on statutes leads us to light of the record of the review the tax commis- First, requires any provision we do not see grounds. two EPA, the documentation yet to the here evidence supplemental sioner to submit it. EPA’s review of initial and the application at issue was submitted after 5709.22(B) to R.C. Second, statutory right its under Veolia failed to exercise tax hearing department, at the before the participate that the EPA demand the EPA to the new documentation. inevitably exposed have demand would EPA at the testimony engineer of the noting It worth that the is also changed would not have that the EPA’s recommendation hearing BTA indicated documentation, concentra- using pollutant submitted newly based on the has not been deemed exemption of the percentage tion to determine the EPA. by the acceptable approach
Conclusion reasons, BTA. affirm the decision of the foregoing For the we affirmed. Decision O’Connor, C.J., Lanzinger, Kennedy, French, Pfeifer, O’Donnell, JJ., O’Neill, concur. L.L.C., Louis, Cavilieri, appellant. and Harlan for
Bailey S. Hussain, Attorney DeWine, General, Assistant Attorney Sophia Michael General, appellee. Appellant. Appellee, Broom, Ohio, State
{¶ 1} the Cruel and Unusual Punishments and Double Jeopardy Clauses the United States and Ohio Constitutions from carrying penalty against out the death Romell Broom when to insert an attempts IV catheter were unsuccessful an earlier scheduled execution. hold that carrying We the state is not barred from out his execution and therefore affirm judgment appeals. of the court of Background
Case
3, 1985,
Broom,
a jury
appellant,
On October
convicted
Romell
{¶ 2}
aggravated
with two felony-murder specifications
rape)
murder
(kidnapping
in connection with the death of 14-year-old Tryna Middleton. Broom received a
death,
sentence of
appeal.
which was affirmed on
40 Ohio St.3d
533 N.E.2d
remedies,
postconviction
After Broom exhausted his
and federal
this
court ordered the execution to
on
proceed
September
123 Ohio St.3d
114,
Facts transported Facility Broom was to the Ohio Correctional Southern {¶ 3} (“Lucasville”) on of his execution scheduled September anticipation Lucasville, day. Upon phlebotomist the next his arrival at a nurse and a a right-arm appeared conducted vein assessment and found that Broom’s vein accessible, but his left-arm vein communicated seemed less so. Prison officials Jr., this information regional to Edwin C. Voorhies director for the Office of (“ODRC”), Department Prisons the Ohio of Rehabilitation and Correction the medical team him that a present problem. assured this would not At p.m. September reading 1:59 the warden finished the death (a female) (a later, warrant to Broom. One minute Team Members 9 male) entered the cell to sites. holding prepare the catheter Team Member 9 made to insert a catheter into Broom’s attempts three
{¶ time, left arm At Team but unable access vein. the same Member break, arm. After a short right into Broom’s made three unsuccessful stabs insertions, which caused Broom to the second of Member 9 made two more aloud from the pain. scream vein, the TV catheter into but then managed Member to insert occurred, Broom’s arm. When began running the vein and blood down
lost if room, security “no” when a officer asked saying 9 rushed out of the Member okay. she was problem testified that he could tell there was Director Voorhies saw the team make six or seven Phillip 10 to 15 minutes. Warden Kerns
first According period. the same 10-to-15-minute attempts during on Broom’s veins veins, Kerns, hit as soon as started the saline the team members did but bulge, making vein would it unusable. drip, the Kerns and Voorhies saw Member 9 process, About 15 minutes into the *3 “profusely” her as and heard holding sweating
leave the cell. Voorhies described veins, the veins “blew.” that she and Member had both accessed but say her attempts” cell and made “several to access holding Member then entered the Simultaneously, attempts arm. Member 21 continued his vein Broom’s left right Broom’s arm. ODRC, Collins, director of the called a break Terry who was then the
9}{¶ into to consult with the medical team. break process about minutes were IV reported they gaining lasted 20 to 25 minutes. The medical team through tried to run saline the line. they access but could not sustain it when But they get whether would usable veins. They expressed “clear concern” about venous they establishing said that there was a reasonable chance of access, the decision was made to continue. time, pain puncture in a deal of from the By great this Broom was
{¶ 10} wounds, it for him to move or stretch his arms. The second which made difficult examining with three team session commenced medical members — 21— time, injection they sites. For the first also possible Broom’s arms and hands for legs. They his elbow as well as his also began examining areas around and above sites, inserting and as continued catheter needles previous reused insertion sites, eyes began cry covered his already into swollen and bruised Broom had before seen an from the Director Voorhies remarked never pain. cry during inmate of venous access. process so, to contact another ten minutes or Warden Kerns asked nurse After
{¶ 11} and offer advice Lucasville to see if she would assess Broom’s veins physician woman,” that he saw “an Asian finding about a suitable vein. Broom later stated nurse,” as “the head enter the chamber. Some- erroneously whom he identified bone, it, needle, inserted she struck one handed her a and when she time, screamed from the At pain. the same another team member was attempt- ing to access a vein in right ankle. The Lucasville physician cell, confirmed that she came to Broom’s foot,
examined his and made one unsuccessful attempt to insert a needle but quickly concluded that so, the effort would not By doing work. disobeyed she warden’s express instructions to observe only and not get physi- involved. The cian examined Broom’s foot but could see no other vein. After the physician departed, the medical team trying continued
establish an all, TV line another five to ten minutes. In the second session lasted approximately 35 to 40 minutes. break, During the second the medical team advised that even if they vein,
successfully accessed a they were not confident the site would remain viable throughout the execution process. The governor’s signaled office had its willingness to grant reprieve, and so the decision was made to halt the execution for the day. Dr. Jonathan Groner examined and photographed Broom three four
days afterward. The photographs injection show 18 sites: one on bicep, each four (forearm), on his left antecupital right three on his antecupital, three on his wrist, left hand, one on the back of his left hand, three on the back right of his and one on each ankle. Prison officials later confirmed that he was stuck at least 18 times. Dr. Mark Heath met with Broom one week after the Dr. event. Heath
observed “considerable bruising” and a lot “deep and superficial” tissue damage consistent with multiple Dr. probing. Heath also posited the actual *4 number catheter insertions was much higher marks, than the number of needle according him, to what Broom told the medical team would withdraw the partway catheter and then reinsert it at a angle, different a procedure known as “fishing.”
Subsequent Litigation
Broom
pursued
has
multiple avenues challenging any
attempt by
further
the state to execute him. He
a civil-rights
filed
complaint under
U.S.C. 1983
(“Section 1983”) in the United States District Court for the Southern District of
Ohio on September
2009.
argued
He
that a second attempt to execute him
would violate the Eighth
prohibition
Amendment’s
on cruel
punish-
and unusual
ments and the Fifth Amendment right against
jeopardy.
double
The federal
court dismissed these
prejudice
claims without
procedurally improper.
as
Broom
Strickland,
2:09-cv-823,
2010).
S.D.Ohio No.
Thereafter, court denied Broom’s 2012). Broom, (Apr. Cuyahoga Dist. No. 96747 8th court, on three accepted jurisdiction and we to this appealed of law: propositions
(1) found that the Cruel Unusual they courts erred when The lower Amendments to the and Fourteenth of the Punishments Clauses Constitution, I, of the Ohio Constitu- and Article Section 9 United States Broom. to execute attempt tion do not bar another law, (2) adequate Broom due process lower courts denied multiple attempts” “no day in court on his process, corrective and his discovery hearing, him and [b] the trial court denied claims when [a] notice to court, prior first and without impression in a case of appellate adjudicat- standard for Broom, and fact-based adopted case-specific a new claims, and then refused rare constitutional unique ing develop could evidence trial court so that Broom remand the case to the that new that he meets standard. argument and present (3) found that a second courts erred when The lower being placed prohibitions against Broom would not violate execute *5 in Fifth and Fourteenth the same offense the jeopardy twice in for I, 10 of and Article Section to Constitution Amendments the United States Constitution. the Ohio
65
1403,
Analysis Jeopardy Double The Fifth Amendment that no provides person subject shall “be for the offence in put same to be twice of life or jeopardy Jeopardy limb.” Double protects Clause three a against distinct evils: second for prosecution the same a acquittal, conviction, offense after second for the prosecution same offense after multiple Pearce, for punishments the same offense. v. 395 North Carolina 2072, (1969), 23 656 U.S. S.Ct. L.Ed.2d on other grounds, overruled Smith, 794, 2201, Alabama L.Ed.2d 865 Ohio’s I, prohibition against jeopardy, 10, constitutional double Section Article is coex- Brewer, 202, tensive with the federal clause. State v. Ohio St.3d 2009-Ohio- ¶ 593, 284, 903 N.E.2d that Broom a an argues attempt second execution would be unconstitu-
tional second
He
punishment.
double-jeopardy
contends
the
purposes,
attempt
began
execute him
with
of
warrant
the
reading
the death
or at
very latest with the first insertion of
needle.
Broom claims that once the
attempt
began,
to execute him
in
expectation
he had a reasonable
the “finality”
sentence,
his
meaning
death
his death should have occurred on September
2949.22(B)
2009,
because R.C.
that a death
requires
sentence be executed
day designated
a court.
his life
by
“jeopardy” by
Because
was once placed
of painful
virtue
the two hours
to insert
into
body,
efforts
needles
argues,
may
again
not
be
same
required
undergo
punishment.
appeals
The court
claim
rejected
this
on the
that Broom has
grounds
been
yet
punished
punishment
because his
is death: “An inmate can
be
only
once,
put
process
to death
legislatively begins
application
the
inmate
application
{¶25}
unsuccessful,
state
that when
actions
the
halted
preparatory
proved
contends
the
Therefore,
out.
the
imposed
the execution and the
sentence was never carried
that
not violate
attempt
carry
a
out
sentence will
the
argues,
state
second
2949.22(A),
“a
provides
The state cites R.C.
which
that
Jeopardy
Double
Clause.
by causing
application
person, upon
shall
to the
death sentence
be executed
of a
a
or combination
imposed,
injection
drug
whom the sentence was
lethal
added.)
The state reads this
to mean
drugs.”
(Emphasis
language
begin
applied.
not
until
lethal force
measure is
attempt
does
agree.
question
drugs
We
There is no
that lethal
did
enter Broom’s
a
attempt
preparations
The execution
was halted after
to establish
viable
body.
a necessary
IV line were
The establishment of viable
lines is
unsuccessful.
IV
not,
itself,
preliminary step,
by
prisoner
but it
at risk of death. As
place
does
clear,
drug
makes
the execution commences when the lethal
enters
statute
case,
attempt
proceed
point
line.
In this
did not
to the
IV
injection
line, jeopardy
of a lethal
into the IV
never attached. Because
drug
against
Fifth
double
protection
jeopardy,
there is no violation of the
Amendment
is not barred from a second
to execute Broom’s death sentence.
state
Due Process
law,
In his
Broom raises two
con-
proposition
due-process
second
First,
alleges
permitted
he
trial
have
him to conduct
cerns.
court should
should
a
his
discovery
hearing
petition
postconviction
have held
relief.
Second,
District
a new
argues
adopted
that the
standard —deliberate
analyze
appellate
that the
court should have
petition
indifference —to
hearing
case
trial court
a
remanded the
to the
to hold
under
standard.
Discovery
Hearing
but,
is
of a
conviction
postconviction proceeding
appeal
A
not an
criminal
rather,
collateral,
judgment.
Steffen,
a
attack on a
civil
criminal
State
(1994).
399, 410,
right
postconviction
N.E.2d 67
to file a
Ohio St.3d
Calhoun,
statutory
right.
not a
86 Ohio
petition
right,
constitutional
State
(1999).
279, 281,
St.3d
{¶29} time petition 2953.21(C) defendant files a for postconviction relief. R.C. (“Before * * granting *, a hearing a petition the court shall determine whether there added]). are substantive for grounds relief’ A [emphasis trial court has the discretion to a deny postconviction petition without or an discovery evidentiary if hearing petition, affidavits, the supporting evidence, documentary and trial record do not demonstrate operative “sufficient facts establish substantive grounds for relief.” Calhoun at paragraph syllabus. two the an To warrant evidentiary hearing postconviction in a proceeding, petitioner a must submit evidence the outside record that sufficiently petitioner establishes that the is entitled to relief on one or more grounds. asserted constitutional R.C. 2953.21(A); Calhoun at 283. The decision to or grant deny a postconviction petition should be upheld discretion, an
absent
abuse of
a
and reviewing court should not overrule the trial
court’s
if
determination
it is supported by competent and credible evidence.
Gondor,
¶58.
v.
112
377,
Deliberate Indifference The because, trial court dismissed postconviction petition Broom’s although “repeated torture,” needle sticks are indeed are unpleasant, they harm present. risk of serious there was not substantial
and because
After
however,
reasoning.
holding
method of
District,
used
different
and unusual
per
do not
se constitute cruel
attempts
execution
multiple
¶ 24,
L.Ed.2d (6th Cir.2009) Strickland, (holding that F.3d 227-228 protocol); Cooey v. did not make limit on search accessible veins impose the failure time unconstitutional). *8 protocol Ohio’s separately analyzed allegations then Broom’s Eighth The District attempted from Ohio’s execution execution
prison
protocol
officials deviated
standard,
requires proof of a state
which
using the conditions-of-confmement
Cruel and Unusual
Eighth
The
Amendment to the’U.S. Constitution
states,
Constitution
Eighth
Amendment
the United States
nor cruel and
required,
imposed,
not
nor excessive fines
“Excessive bail shall
be
acknowledged as an
penalty
The death
has been
punishments
unusual
inflicted.”
acceptable form of
since the
of the
punishment
adoption
United States Constitu
—Gross,
Rights.
U.S.—,
2726, 2731,
tion
the Bill of
Glossip
v.
135 S.Ct.
(2015).
individuals whose personal characteristics
personal
responsi-
diminish their
moral
bility
Simmons,
for the
crimes
have committed.
Roper
U.S.
(2005)
juvenile offenders);
{¶ 39}
has long
Court
held that punishments
they
are cruel “when
torture or a
involve
death,”
Kemmler,
447,
lingering
436,
930,
In re
136 U.S.
10 S.Ct.
alive; Wilkerson 99 public and with dissection. constitutionality the 446-447 (1878); (affirming also In re Kemmler at 345 see cruel); breaking the wheel would be stating that crucifixion and electrocution but (Thomas, J., 94-99, 1520, 170 concurring) L.Ed.2d Baze, U.S. at S.Ct. cheeks, dismemberment, cut with injection flaying, branding (contrasting lethal nostrils). ears, slitting and off hands or ting execution, consideration, analyzing a method of when foremost challenged the method.” pain evidence of involved “objective
often the
(9th
Wood,
Cir.1994);
Cooey, 589 F.3d at
accord
18 F.3d
Campbell
cruelty.
Eighth
necessarily
only
indicator of
pain
But
“
”
of man.’
dignity
penalty
that a
accord
‘the
Amendment also demands
(2002),
730, 738,
Pelzer,
quoting
concern Ohio’s chosen punishment. cruel and unusual He attempt would constitute second execution time, already beyond pain, went experienced claims that what is no in a Because there involved “normal” execution. anguish emotional him success, contends, any to execute would guarantee attempt further cruel and unusual. be Supreme States precedent claim has no Ohio. The United
Court, however, a failed violated considered whether *10 with the electric difficulty in After the mechanical Amendment Resweber. Eighth death, was issued. 329 result Francis’s new death warrant chair failed to that once objected argued L.Ed. 422. Francis U.S. electrocution,” to strain psychological preparation “the he underwent require him to undergo preparation a second him subject time would to lingering or cruel punishment. and unusual Id. at A 464. plurality- four-member rejected argument, this cruelty against “[t]he which the Constitution protects convicted man is cruelty inherent punishment, method not the necessary suffering any involved method employed to extinguish life humane- added.) ly.” (Emphasis Id. at 464. The dissenting justices noted that electrocution statutorily
constitutionally permissible only if it is “so instantaneous and substantially painless that punishment reduced, shall be as nearly possible, as to no more than that of (Burton, J., death itself.” Id. at 474 dissenting). The dissenters rejected prospect installments, of execution by what termed “a delayed process of execution.” Id. at 474-475. Justice Frankfurter cast deciding vote. joined He the plurality
reject
appeal
Francis’s
because he did not believe that the Fourteenth Amend-
ment made the Bill of Rights applicable to the states.1 According to Justice
Frankfurter,
the Due Process Clause of the Fourteenth Amendment limited a
“
state’s criminal procedures only insofar as a state practice
‘offends some
justice
principle
so rooted in the traditions and conscience of our people as to
”
be ranked as fundamental.’
(Frankfurter, J.,
Id. at 469
concurring), quoting
Massachusetts,
Snyder
(1934).
291 U.S.
54 S.Ct.
execution does not per amount to a se Amendment, violation of the Eighth we consider whether it is violated under the test set forth in Glossip and Baze. Broom argues that the state should have known of potential problems with his execution beforehand. He submitted evidence that the state experienced problems establishing maintaining during IV catheters the previous execu- Supreme repudiated The United States position: Court later Frankfurter’s The Due Process incorporate Clause the Fourteenth protections Amendment does Amendment’s against punishments apply cruel and unusual California, to the states. Robinson v. 666-667, 82 S.Ct. 8 L.Ed.2d 758 *11 72 have that should problems Newton and Christopher Clark Joseph
tions may that there be assessment indicated Broom’s first vein when expected been why the record But, it is unclear from veins. accessing the trouble Although suggest- Dr. Heath IV access. unable to establish execution team was likely that he is to to establish it is Broom’s burden technique, it poor ed that was undergo a second execution. required if to pain suffer severe months after the Further, less than three in December challenge to Ohio’s rejected a constitutional Broom, Circuit the Sixth execute proof, negli- or even of medical “[speculations, that noting protocol, execution facially not sufficient to render in the future are past in the gence at 225. The Cooey, 589 F.3d unconstitutional.” constitutionally protocol sound amended and we Cooey in has been Circuit reviewed that the Sixth protocol again. will befall Broom with IV access problems that the same cannot assume protocols of the execution that the state’s violation also contends risk of and created a substantial were not blameless that officials prison indicates way best protocols is the that with execution agree compliance harm. We is not an automatic protocol deviation from pain, risk of severe but avoid the (Wiles), Litigation Protocol In re Ohio Execution constitutional violation. See (S.D.Ohio 2012) Consti- of the United States (protections 626 F.Supp.2d 868 provision of Ohio’s every single adherence to require perfect “do not tution deviation”). convinced, however, that are not without We protocol execution protocol violate its execution likely that the state is Broom has established future. enjoined state was from September the events Following Lorraine based and Charles executions of Kenneth Smith carrying out the that Ohio was not court’s determination on the federal district large part Kasich, 801 Cooey F.Supp.2d protocol. execution See following its (Lorraine), (S.D.Ohio 2011); Litigation Protocol In re Ohio Execution (S.D.Ohio 2012). F.Supp.2d federal district court. the concerns of the sought to address The state and forms were a new command structure adding
It the protocol, amended to ensure completed step protocol out as each to be filled required demonstrated a commit sufficiently The state at 629-632. compliance. Wiles with the execution proceed and was allowed to follow the protocol ment to any apparent occurred without more executions Id. at 652. Several Mark Wiles. (Phillips), Litigation Protocol In re Ohio Execution protocol. violation of the (Nov. 2013). This led 2:11-cv-1016, 5963150, *11-16 2013 WL No. S.D.Ohio “ perfect not have a ‘Ohio does court to conclude the district ” Id., following.’ it to be system appears it has a constitutional system, but (Hartman), quoting In re Ohio Execution Protocol Litigation 906 F.Supp.2d (S.D.Ohio 2012). acknowledge While we the state failed to protocol follow the cannot ignore transpired we what has since then. The state has executed attempted death-row inmates since the execution of Broom. See Ohio *12 Correction, Present, Department Rehabilitation and Ohio Executions —1999 to (last http://www.drc.ohio.gov/web/executed/executed25.htm updated Jan. 2014). clear, To be comply the state must with the protocol as amended. Strict
compliance protocol with the will ensure that executions are carried out in a constitutional manner and can also prevent or reveal an attempt inmate’s to interfere with process.2 the execution simply We are unable to conclude that Broom has established that the state in carrying out a second to attempt likely protocol violate its and cause pain. severe We therefore conclude that the Eighth Amendment does not bar the
state from out carrying Broom’s execution. I,
Article
Section 9 of the Ohio Constitution
I,
Broom has also
relief
sought
under the Ohio Constitution. Article
Section 9 of the Ohio Constitution provides, “Excessive bail shall not be required;
nor excessive fines
nor
imposed;
punishments
cruel and unusual
inflicted.” This
court
long
has
held that the Ohio Constitution is a “document of independent
Cleveland,
force.”
(1993),
Arnold v.
67 Ohio St.3d
to execute also commenced. The state lines, was never into the execution introduced the IV 2009 that it September after that were conducted in the executions demonstrated Broom’s life was as written. Because protocols following is committed introduced, the state is and because were not drugs at risk since the never manner, we do not in a constitutional out executions carrying committed to carry out conscience to allow the state the public’s that it would shock believe I, 9 of the Ohio that Article Section therefore conclude execution. We sentence. executing Broom’s death the state from does not bar Constitution
Conclusion *13 is affirmed. County Appeals Court of Cuyahoga of the judgment The {¶ 57} affirmed. Judgment Kennedy, JJ., C.J., concur. O’Connor, and O’Donnell and J., joins. Pfeifer, French, J., in which opinion dissents with an O’Neill, J., opinion. with an dissents
French, J., dissenting. evidentiary hearing an deny Romell Broom majority’s decision The
{¶ 58} law, facts, on the and wrong wrong claim is on the Amendment Eighth his conclusion the trial court’s majority adopts The reasoning. inconsistent in its no as to dispute because hearing unnecessary “[t]here evidentiary that an 14 and 2009.” September fact in connection with the events any operative ¶ then, of the contra- apparent with no awareness at 31. And Majority opinion it hearing precisely diction, rejects request majority case, the reason for namely, at the heart of the of fact dispute finds an unresolved attempted of Broom’s access at the start to establish IV inability the state’s execution. evidentiary to an Broom is not entitled holds that today The court
{¶ 59} failed to his prove claim because he Amendment prove Eighth hearing under R.C. legal not the correct standard that is pleading stage; claim at the outside the 2953.21(E). by seeking evidence its error compounds The court then procedures in its execution problems that the state has cured the prove record longer on an that is no effect. seizing protocol reasons, For I dissent. these {¶ 60}
LEGAL FRAMEWORK
A method of execution violates the
Amendment if it
presents
very likely
suffering
risk that is sure or
to cause serious illness and needless
—Gross,
U.S.—,
sufficiently
rise to
imminent
give
dangers. Glossip
2726, 2737, 192
must
a ‘substantial risk of
“[T]here
S.Ct.
L.Ed.2d
be
harm,’
serious
an
intolerable risk of harm’ that
‘objectively
prevents prison
from
of the
pleading
they
‘subjectively
purposes
officials
were
blameless for
”
Rees,
1520, 170
Eighth Amendment.’ Baze v.
128 S.Ct.
L.Ed.2d
(2008)
Brennan,
825, 842, 846,
(plurality opinion), quoting
Farmer
U.S.
fn. 9.
in Baze
controlling opinion
satisfy the both are Glossip/Baze unpersuasive. 1. Broom’s evidence a risk serious harm postconviction After the evidence from Broom’s reviewing petition, opines why court that.it is “unclear from the record Broom’s execution team Majority opinion logic appears unable to establish IV access.” at 47. The to be occurred, if prove why prove he cannot the errors then he cannot will recur. reasoning misapplication petitioner’s The court’s rests on a of a burden *14 petition. hearing when a Before a on a proof filing postconviction granting a trial court must consider whether it “substantive for
petition,
presents
grounds
2953.21(C).
relief.” R.C.
A trial court acts within its discretion when it dismiss
if
petition
hearing
by
es
without a
the evidence and affidavits submitted
“
operative
fail to set forth
‘sufficient
facts to establish substantive
petitioner
”
Gondor,
377,
{¶ 65} order an not mean that the facts evidentiary hearing presented to secure does 2953.21(C) effectively undisputed. application must be The court’s R.C. case: either the possibility evidentiary hearing every eliminates the of an relief, in which case the petition grounds fails to establish substantive for is not entitled to a or evidence and affidavits petitioner hearing, establish evidentiary for relief in which grounds beyond dispute, hearing case would be superfluous. totality, petition When considered its Broom’s contained sufficient record, believed, facts to warrant a in the if
operative hearing. The evidence would establish that the state has and had repeatedly predictably problems veins, establishing maintaining problems access to inmates’ that these are the result of medical on incompetence part the execution team members catheters, responsible inserting incompetence for IV and that the of the execution it likely problems staff makes more than these will recur future execu- tions. notes, majority correctly As the the execution team unsuccessfully injection
inserted IV catheter needles into at least 18 separate sites Broom’s body, and the actual much greater number catheter insertions was than the injection number needle marks because sites were used But multiple times. majority gives testimony scant attention to the of Dr. Heath concerning of medical magnitude incompetence displayed or to evidence of the state’s long, problematic history with in lethal-injection procedures. IV catheters As Dr. Heath explained, drugs through are administered catheter, peripheral IV which consists of a hollow needle aby plastic surrounded tube called practitioner the catheter. The inserts both the needle and Thus, catheter into the vein. although blood draws and TVcatheters both involve pricks, object needle the latter also includes the of an insertion with a wider diameter. case, Dr. Heath that in testified the medical team inserted
catheters in a improperly likely fashion to cause greater pain:
And what described did not sound to me at all in right [Broom] terms of proper procedure. He described the into his depth muscle which catheter, pushing catheter, were all the going way up the hub of the which is well over an inch in at deep, going very steep angle, which comport does not proper technique going what’s to be a successful technique getting a catheter into a vein.
Q: body And what kind of—what kind of would a human response have to that technique? kind of
A: It hurt. would *15 The fact that the attempted medical team to insert the catheter into Broom’s arm nearly in a perpendicular “bespeaks certainly poor technique” line of bizarre and physician the Lucasville insertion.” Even possibility achieving that had “no she angle, why at the which is wrong into Broom’s ankle inserted the catheter struck bone. veins, team occasions, the catheter into Broom’s getting two after On
{¶ 70} tubing relatively simple process attaching I.V. up members “botched catheter, everywhere.” Compounding sprayed into hub of the and blood wearing gloves the catheter was not the team member who inserted problem, unsuccessfully attaching the risk of thereby increasing during procedure, tubing. attempts that clinical demands that competence Dr. Heath testified Lucasville attempt. before the 19th long IV access be abandoned
peripheral assessment, if known that 18 testifying this she had agreed with physician Broom, have stuck him with been made on she never would attempts already had partially to “físh” a although proper practice a And it can be needle. vein— catheter, angle “complete- it at a different withdrawing reinserting then —it many to have made as beyond any acceptable far standard” ly unacceptable [and] apparently holes as the medical team through insertion the same needle attempts did. medical was not the first time the The Broom execution very first During an IV catheter. Ohio’s difficulty inserting
execution team had in team members Berry that of the medical injection, lethal Wilford Berry’s a vein in arm line were unable to locate responsible for the IV catheter executed for assistance. When the state and had to call a third team member minutes approximately team needed Newton the medical Christopher Keene, the 2009 execution of Marvallous during to establish two IV lines. And fluid to flow. get to a line because could backup the team had to switch to the prior attempted But most disastrous execution end-of-the-day on the May 2006. Based Joseph Broom was that of Clark case, trying 17 or 18 needles the execution team used needle count Clark’s backup line before manage never did to install establish two IV lines and case, critical of the in Broom’s Dr. Heath was executing him. As ultimately IV, to establish the fruitlessly trying case to continue decision Clark’s attempts, than six to ten subject a to more testifying patient that he would not that the effort is recognize by point will “any practitioner” normal patient. on the only inflicting pain futile and is needless incom- for the state’s failures: simple explanation Dr. offered a Heath arms, areas of on Mr. Broom’s other my opinion that the veins petence. “[I]t problem, team.” Part of the easily by competent accessible body, should be may who regarding had lax standards arose from the fact that Ohio opined, inserting person during catheter execution. peripheral install IV *16 catheter should peripheral performs IV be someone who that task as of his part job daily protocol required only or her duties. But Ohio’s of year experience, one with no limitation on in that experience might how remote time be. Team Member who in participated procedure, the Broom is a
{¶ 75} blood, do, But phlebotomist. drawing phlebotomists which is what is a “much easier and that “far simpler” process fraught less than problems” in inserting inject drugs catheter order to into the Dr. body. Heath testified allowing phlebotomist such as Member to handle the insertion at an execution is “deeply inappropriate and reflects a deep misunderstanding deep inability of what is needed to an appropriate assemble team.” [execution] Nor pain was severe from inserting only potential IV catheter the Clark, harm Dr. Heath During identified. the execution of Joseph process known as infiltration occurred. “Infiltration” means the catheter needle is no vein, longer and the drug being administered into tissue surrounding the vein. Infiltration of sodium thiopental may “very cause significant pain,” either a pH due to imbalance or from the sudden accumulation of fluid in the tissue. protocol in effect at the attempted time Broom’s execution called for administration of sodium thiopental as the first of three drugs. The current protocol, effective June permits the use of sodium at thiopental discretion of Correction, the warden. Ohio Department Rehabilitation and 01-COM-ll, Policy No. http://www.drc.ohio.gov/web/drc_policies/ (“Current Protocol”) (accessed 2016). documents/Ol-lCOM-ll.pdf But Feb. there is no evidence in the record to indicate whether sign infiltration is a negligence risk, merely unavoidable even if performed by the most skilled practitioners. evidence, In the face of this it is disingenuous dismiss Broom’s
petition grounds on the that it is “unclear” why the execution team was unable to establish majority IV access. The opinion cites no evidence in the record for an failure, alternative explanation it, of the state’s nor given could that the state failed to submit if any majority evidence. And the truly believes that the cause is unclear, that is all the more reason to an evidentiary have hearing resolve the question. Nor does the majority explain conclusory its assertion that Broom failed
to establish a likelihood that will pain suffer severe in the future. There is no evidence the record to suggest the state has improved training its execution team members or increased the requirements certification to perform fact, these tasks. In Ohio’s current execution protocol requires only year still one experience.3 If the state cannot explain why wrong, went execution guarantee then the state cannot that the outcome will be different next time. current protocol Ohio’s conclusion, In an its bolster reaches majority outside record evidence the state has improved procedures. its execution Strickland, it Specifically, cites Sixth Circuit’s decision Cooey v. 589 F.3d (6th Cir.2009), for the proposition protocol Ohio’s current execution *17 Therefore, asserts, passes constitutional muster. majority the “we as- cannot that problems sume the same again.” with IV access will befall Broom Majority ¶at opinion 48. This argument Cooey misunderstands the improperly shifts burden of proof. As explained Cooey, execution, in the of attempted aftermath Broom’s 81}
{¶ state changes First, the made two to its execution protocol. it switched from a to a three-drug protocol protocol. at one-drug drug Id. 215. But since the one still intravenously, was administered id. at remedy this change nothing did problem incompetent the of insertion IV catheters. Second, new protocol the authorized a two-drug, injection intramuscular 82}
{¶ if backup procedure as the execution team cannot obtain IV access. Specifical- if the ly, injections warden and director determine that IV cannot or should not used, be then may injection the state administer an hydromor- midazolam and intramuscularly. Id. at 220. But in phone January Cooey, years five after the state midazolam removed from hydromorphone protocol.4 its execution And that the it leaves state back where with a that began, protocol mandates injection intravenous no provides intramuscular backup.5 majority opinion notes that protocol the amended added “a new command structure and forms that were required to be filled out as each step ¶ protocol the completed.” Majority was at 51. cites In opinion It re Ohio (S.D.Ohio (Wiles), Litigation 2012), Execution Protocol F.Supp.2d “sufficiently that the state proposition demonstrated commitment to follow the protocol” to the federal court to persuade Majority allow executions to proceed. ¶at it opinion by 51. And that is announcing concludes this court “not convinced * * * that has likely Broom established is its state to violate protocol in the future.” Id. at 49. is majority’s faulty for three reasoning reasons.
3. Current Protocol at 2. See Department Correction, Protocol, http:// Injection Ohio of Rehabilitation and Ohio Revises Lethal (accessed 2016). www.drc.ohio.gov/Public/press/press436.htm Feb. Current
5.See Protocol 15-16. the new -command First, opinion explain does not how majority {¶84} incom- problem of medical protocol remedy in the will structure amended not improve will petition. paperwork Additional petence identified ability team’s to insert an IV catheter. the execution Second, violating Equal was addressed whether the state Wiles lethal-injection its not the protocol, administration of Protection Clause its district court “a F.Supp.2d at 636-637. The observed Amendment. 868 Eighth at 640. In the protocol.” from the Id. arbitrary deviations pattern consistent it claim, strictly that would Protection the state’s assurances Equal context But is was relevant. written in the future Wiles comply procedures Broom’s claim under the Amendment. irrelevant to Third, failed state prove that Broom majority’s assertion protocol written deeply Assuming in the future is unfair. will deviate (which not), is in compliance assurance of future it is the state’s even relevant effectively the burden of majority shifting essence an affirmative defense. The did not even by rebutting for not evidence the state proof faulting Broom exactly introduce supposed into the record. And when introduce postconviction All comes from the the evidence in the record such evidence? *18 and subsequent relies on events September majority petition filed majority truly in the If the believes that recent not contained record. documents is to remand the petition, to the answer adjudicating events are relevant this own hearing, not for court to make its assessment evidentiary for an petition from the input parties. without a record
CONCLUSION evidentiary to trial an case court for We should remand Broom’s {¶ 87} it for the court to hearing. unnecessary premature this and disposition, With is legal other I dissent. any questions. address J., foregoing opinion. concurs in the
Pfeifer, J.,
O’Neill,
dissenting.
I
Respectfully, must dissent.
in
motion
joined
granted
I
court
we
a
to set
Shortly after
this
134 Ohio
Jeffrey
Wogenstahl,
for
A.
State v.
St.3d
Wogenstahl.
execution date
successive for relief arguing, among things, other that a attempt second execution would punishment. constitute cruel and unusual Clear- ly, it would. The majority’s description put the state’s first Broom to
death chills me to core. It not only rights of the defendant that are play here. There state employees are who have tragically personal endured the unsuccessfully trauma of attempting to execute a human being. fellow And now we, them, as a society, telling again.” are “Do it I can only imagine the apprehension Broom and his executioners must be feeling they prepare now as for and attempt. await second again, Once this case injection” demonstrates the term “lethal
merely
euphemism
a convenient
used to aid in
a blind
to the
turning
eye
real
possibility
execution
can
do
procedures
go wrong
with predictable and
horrendous results. The phrase
implies
itself
sanitized death unlike
stories
Broom,
McGuire,
Warner,
told in the media about
Dennis
Clayton
Charles
Lockett, and
others.6
record is clear that Broom
poked repeatedly
with
reported
6. The
Christian Science Monitor
“Broom
was stuck
needles at least 18
during
times over the course of
“[t]hat
two hours” and that
incident followed two others in Ohio
past
years,
Guarino,
inserting
three
both of which involved difficulties
the IV.”
Ohio Execution Set
Process,
(Mar.
Changed
Injection
16, 2010),
in Case
http://
Lethal
Christian Science Monitor
www.esmonitor.com/USA/Justice/2010/0816/Ohio-execution-set-in-case-that-changed-lethal-injection-
(accessed
1, 2016).
process
“experienced
pain
Mar.
Ohio inmate Dennis McGuire
‘true
”
choked,
suffering’ during
“gasped,
appeared
his successful
as he
clenched his fists and
* * *
struggle against
being pronounced
restraints
about 10 minutes
before
dead.”
’
‘Humane,
Johnson,
Says,
Dispatch (Aug.
Dennis
Not
McGuire’s Execution Was
Doctor
Columbus
*19
13,
2014), http://www.dispatch.com/eontent/stories/local/2014/08/12/inmate-suffered-pain-during-
(accessed
1, 2016),
exeeution-doctor-says.html
quoting
anesthesiologist’s
Mar.
a California
sworn
by
Oklahoma,
from a
statement
civil suit filed
children. In
McGuire’s
Charles Warner suffered five
exclaimed,
fire,”
attempts
“My
injected
body
at IV insertion and then
is on
after
him
executioners
wrong
Gajanan,
drug.
Wrong
Execution,
with
Drug
the
Oklahoma Used
in
Warner’s
Charles
(Oct. 8, 2016),
Autopsy Report Says,
http://www.theguardian.com/us-news/2015/oct/08/
The Guardian
(accessed
2016).
1,
oklahoma-wrong-drug-execution-charles-warner
Clayton
Mar.
Lockett also
Stern,
painful attempts
than
suffered more
a dozen
at
insertion.
The
IV
Cruel and Unusual
Lockett,
(June 2015),
Clayton
http://www.theatlantic.com/magazine/
Execution
The Atlantic
of
(accessed
2016).
archive/2015/06/exeeution-clayton-locketf/
drugs ultimately
Mar.
392069/
through
dislodged
Consequently,
were administered to Lockett
an IV that had
from his vein.
the
drugs pooled
only
slowly,
partial
under his skin and entered his bloodstream more
and he
a
received
meantime,
up,
dose of the sedative midazolam before he died.
In
was
to wake
the
Lockett
able
himself,
struggle
enough
injuries”
strongly
“blunt-impact
with his restraints
to cause
to
and
inflicted, not
procedures
unlike
unquestionably
a
pain
needle and
Utah, U.S 130,
in
past.
the
See Wilkerson
recognized
been
as torture
have
Rees,
torture);
(1878)
is
Baze v.
(public
25 L.Ed.
dissection
(dismem
(2008) (Thomas,
J.,
94-99,
concurring)
managed say among the word incoherent Id. Lockett died “Man” attempted apparent agony” Id. while the medical team reinsert IV.
83
executed,
Since Francis was convicted and
our ideas of the United
States Constitution
substantially.
recognize
have evolved
Courts now
that it is a
Simmons,
punishment
cruel and unusual
to execute minor.
v.
Roper
543 U.S.
(2005).
551,
1183,
125
161
1
right
S.Ct.
L.Ed.2d
to a
trial has
jury
evolved
law,
such that under current
challenged
Francis could have
the selection of his
all-white,
jury
all-male
well
makeup
as
as the
of the
from which
pool
jurors
79,
were selected.
v. Kentucky,
1712,
See Batson
476
106
U.S.
S.Ct.
90 L.Ed.2d
(1986);
Louisiana,
522,
v.
Taylor
692,
(1975);
69
419 U.S.
95 S.Ct.
42
690
L.Ed.2d
Louisiana,
625,
(1972).
v.
1221,
Alexander
405 U.S.
92 S.Ct.
Francis court rests (Frankfurter, J., at for what it was: torture. Resweber attempt by my expressed I am to some of the sentiments concurring) (“Strongly drawn as * * * I Burton, dissenting opinion,] would be [join were I brother which, society’s opinion that consensus of enforcing my private view rather than Constitution”); id. at enjoined by is the standard process, for due purposes (Burton, J., electrici- (“[T]oday, separated applications [of two dissenting) 476-477 and unusual’ to be Miller & Bowman ty] sufficiently prohibited”); are ‘cruel “ (the heavily Francis ‘so weighed [Justice and fn. 18 Willie case 125-127 convinced a former Harvard law school conscience’” that he Frankfurter’s] bar, classmate, clemency to seek on Francis’s leading member of the Louisiana behalf), in Library box available of Con- papers, Justice Burton’s quoting way, regressed. In this we have gress. subjecting matter that Broom to I believe as moral and constitutional 98}
{¶
painful
attempt
extremely
after even one
and unsuccessful
second execution
that the
“lingering
Supreme
the sort of
death”
United States
precisely
Amendment 125
meaning
as cruel within the
recognized
Court
Kemmler,