State v. Broom (Slip Opinion) ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Broom, Slip Opinion No. 2016-Ohio-1028.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-1028
THE STATE OF OHIO, APPELLEE, v. BROOM, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Broom, Slip Opinion No. 2016-Ohio-1028.]
Criminal law—Death penalty—Eighth Amendment prohibition against cruel and
unusual punishments and Fifth Amendment prohibition against double
jeopardy—Cruel and Unusual Punishments and Double Jeopardy Clauses
of U.S. and Ohio Constitutions do not bar state from carrying out death
penalty after prior unsuccessful execution attempt—Trial court did not
abuse its discretion in denying postconviction petition without additional
discovery or evidentiary hearing—Court of appeals’ judgment affirmed.
(No. 2012-0852—Submitted June 9, 2015—Decided March 16, 2016.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 96747,
2012-Ohio-587.
LANZINGER, J.
{¶ 1} In this case, we are asked to determine whether the state is barred by
the Cruel and Unusual Punishments and Double Jeopardy Clauses of the United
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States and Ohio Constitutions from carrying out the death penalty against Romell
Broom when attempts to insert an IV catheter were unsuccessful in an earlier
scheduled execution. We hold that the state is not barred from carrying out his
execution and therefore affirm the judgment of the court of appeals.
Case Background
{¶ 2} On October 3, 1985, a jury convicted appellant, Romell Broom, of
aggravated murder with two felony-murder specifications (kidnapping and rape) in
connection with the death of 14-year-old Tryna Middleton. Broom received a
sentence of death, which was affirmed on appeal. 40 Ohio St. 3d 277, 533 N.E.2d
682 (1988). After Broom exhausted his postconviction and federal remedies, this
court ordered the execution to proceed on September 15, 2009. 123 Ohio St. 3d
114, 2009-Ohio-4778, 914 N.E.2d 392, ¶ 21 and fn. 2.
Facts of September 15, 2009
{¶ 3} Broom was transported to the Southern Ohio Correctional Facility
(“Lucasville”) on September 14, 2009, in anticipation of his execution scheduled
for the next day. Upon his arrival at Lucasville, a nurse and a phlebotomist
conducted a vein assessment and found that Broom’s right-arm vein appeared
accessible, but his left-arm vein seemed less so. Prison officials communicated this
information to Edwin C. Voorhies Jr., the regional director for the Office of Prisons
of the Ohio Department of Rehabilitation and Correction (“ODRC”), and the
medical team assured him that this would not present a problem.
{¶ 4} At 1:59 p.m. on September 15, the warden finished reading the death
warrant to Broom. One minute later, Team Members 9 (a female) and 21 (a male)
entered the holding cell to prepare the catheter sites.
{¶ 5} Team Member 9 made three attempts to insert a catheter into Broom’s
left arm but was unable to access a vein. At the same time, Team Member 21 made
three unsuccessful stabs into Broom’s right arm. After a short break, Member 9
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made two more insertions, the second of which caused Broom to scream aloud from
the pain.
{¶ 6} Member 21 managed to insert the IV catheter into a vein, but then he
lost the vein and blood began running down Broom’s arm. When that occurred,
Member 9 rushed out of the room, saying “no” when a security officer asked if she
was okay.
{¶ 7} Director Voorhies testified that he could tell there was a problem in
the first 10 to 15 minutes. Warden Phillip Kerns saw the team make six or seven
attempts on Broom’s veins during the same 10- to-15-minute period. According to
Kerns, the team members did hit veins, but as soon as they started the saline drip,
the vein would bulge, making it unusable.
{¶ 8} About 15 minutes into the process, Kerns and Voorhies saw Member
9 leave the holding cell. Voorhies described her as sweating “profusely” and heard
her say that she and Member 21 had both accessed veins, but the veins “blew.”
Member 17 then entered the holding cell and made “several attempts” to access a
vein in Broom’s left arm. Simultaneously, Member 21 continued his attempts on
Broom’s right arm.
{¶ 9} Terry Collins, who was then the director of the ODRC, called a break
about 45 minutes into the process to consult with the medical team. The break
lasted 20 to 25 minutes. The medical team reported that they were gaining IV
access but could not sustain it when they tried to run saline through the line. They
expressed “clear concern” about whether they would get usable veins. But because
they said that there was a reasonable chance of establishing venous access, the
decision was made to continue.
{¶ 10} By this time, Broom was in a great deal of pain from the puncture
wounds, which made it difficult for him to move or stretch his arms. The second
session commenced with three medical team members—9, 17, and 21—examining
Broom’s arms and hands for possible injection sites. For the first time, they also
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began examining areas around and above his elbow as well as his legs. They also
reused previous insertion sites, and as they continued inserting catheter needles into
already swollen and bruised sites, Broom covered his eyes and began to cry from
the pain. Director Voorhies remarked that he had never before seen an inmate cry
during the process of venous access.
{¶ 11} After another ten minutes or so, Warden Kerns asked a nurse to
contact the Lucasville physician to see if she would assess Broom’s veins and offer
advice about finding a suitable vein. Broom later stated that he saw “an Asian
woman,” whom he erroneously identified as “the head nurse,” enter the chamber.
Someone handed her a needle, and when she inserted it, she struck bone, and Broom
screamed from the pain. At the same time, another team member was attempting
to access a vein in Broom’s right ankle.
{¶ 12} The Lucasville physician confirmed that she came to Broom’s cell,
examined his foot, and made one unsuccessful attempt to insert a needle but quickly
concluded that the effort would not work. By doing so, she disobeyed the warden’s
express instructions to observe only and not get involved. The physician examined
Broom’s foot but could see no other vein.
{¶ 13} After the physician departed, the medical team continued trying to
establish an IV line for another five to ten minutes. In all, the second session lasted
approximately 35 to 40 minutes.
{¶ 14} During the second break, the medical team advised that even if they
successfully accessed a vein, they were not confident that the site would remain
viable throughout the execution process. The governor’s office had signaled its
willingness to grant a reprieve, and so the decision was made to halt the execution
for the day.
{¶ 15} Dr. Jonathan Groner examined and photographed Broom three or
four days afterward. The photographs show 18 injection sites: one on each bicep,
four on his left antecupital (forearm), three on his right antecupital, three on his left
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wrist, one on the back of his left hand, three on the back of his right hand, and one
on each ankle. Prison officials later confirmed that he was stuck at least 18 times.
{¶ 16} Dr. Mark Heath met with Broom one week after the event. Dr. Heath
observed “considerable bruising” and a lot of “deep and superficial” tissue damage
consistent with multiple probing. Dr. Heath also posited that the actual number of
catheter insertions was much higher than the number of needle marks, because
according to what Broom told him, the medical team would withdraw the catheter
partway and then reinsert it at a different angle, a procedure known as “fishing.”
Subsequent Litigation
{¶ 17} Broom has pursued multiple avenues challenging any further
attempt by the state to execute him. He filed a Section 1983 civil-rights complaint
in the United States District Court for the Southern District of Ohio on September
18, 2009. He argued that a second attempt to execute him would violate the Eighth
Amendment’s prohibition on cruel and unusual punishments and the Fifth
Amendment right against double jeopardy. The federal court dismissed these
claims without prejudice as procedurally improper. Broom v. Strickland, S.D.Ohio
No. 2:09-cv-823, 2010 WL 3447741 (Aug. 27, 2010). On the same day that he
filed his Section 1983 complaint, Broom filed an original action for a writ of habeas
corpus in this court (case No. 2009-1686), which he later voluntarily dismissed. In
re Broom, 123 Ohio St. 3d 1485, 2009-Ohio-5883, 916 N.E.2d 482. On September
14, 2010, Broom filed a federal habeas action, which is stayed pending exhaustion
of his Eighth Amendment claim in state court, Broom v. Bobby, N.D.Ohio No. 1:10
CV 2058, 2010 WL 4806820 (Nov. 18, 2010), and a second state-court habeas
action (case No. 2010-1609), which this court dismissed, In re Broom, 127 Ohio
St.3d 1450, 2010-Ohio-5836, 937 N.E.2d 1039.
{¶ 18} On September 15, 2010, Broom filed a successive petition for
postconviction relief in the Cuyahoga County Court of Common Pleas, asserting
that any future attempt to execute him would be unconstitutional. On April 7, 2011,
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the trial court denied Broom’s petition without conducting an evidentiary hearing.
The trial court held that a second execution attempt would not violate the Fifth or
Eighth Amendment. And the court concluded that Broom’s experience of repeated
needle sticks, although “unpleasant,” was not sufficiently torturous to implicate the
Eighth Amendment.
{¶ 19} The Eighth District Court of Appeals affirmed on different grounds.
Thereafter, the court denied Broom’s request for en banc review. State v. Broom,
8th Dist. Cuyahoga No. 96747 (Apr. 5, 2012).
{¶ 20} Broom appealed to this court, and we accepted jurisdiction on three
propositions of law:
1) The lower courts erred when they found that the Cruel and
Unusual Punishments Clauses of the Eighth and Fourteenth
Amendments to the United States Constitution, and Article I,
Section 9 of the Ohio Constitution do not bar another attempt to
execute Broom.
2) The lower courts denied Broom due process of law, an
adequate corrective process, and his day in court on his “no multiple
attempts” claims when [a] the trial court denied him discovery and
a hearing, and [b] the appellate court, in a case of first impression
and without prior notice to Broom, adopted a new case-specific and
fact-based standard for adjudicating Broom’s unique and rare
constitutional claims, and then refused to remand the case to the trial
court so that Broom could develop evidence and present argument
that he meets that new standard.
3) The lower courts erred when they 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
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Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution.
See 139 Ohio St. 3d 1403, 2014-Ohio-2245, 9 N.E.3d 1062. For ease of discussion,
we will address them out of order.
Analysis
Double Jeopardy
{¶ 21} The Fifth Amendment provides that no person shall “be subject for
the same offence to be twice put in jeopardy of life or limb.” The Double Jeopardy
Clause protects against three distinct evils: 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. North Carolina v. Pearce, 395
U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other grounds,
Alabama v. Smith, 450 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). Ohio’s
constitutional prohibition on double jeopardy, Article I, Section 10, is coextensive
with the federal clause. State v. Brewer, 121 Ohio St. 3d 202, 2009-Ohio-593, 903
N.E.2d 284, ¶ 14.
{¶ 22} Broom argues that a second execution attempt would be an
unconstitutional second punishment. He contends that for double-jeopardy
purposes, the attempt to execute him began with the reading of the death warrant
or at the very latest with the first insertion of a needle. Broom claims that once the
attempt to execute him began, he had a reasonable expectation in the “finality” of
his death sentence, meaning that his death should have occurred on September 15,
2009, because R.C. 2949.22(B) requires that a death sentence shall be executed on
the day designated by a court. Because his life was once placed in “jeopardy” by
virtue of the two hours of painful efforts to insert needles into his body, Broom
argues, he may not again be required to undergo that same punishment.
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{¶ 23} The court of appeals rejected this claim on the grounds that Broom
has not yet been punished because his punishment is death: “An inmate can only
be put to death once, and that process legislatively begins with the application of
the lethal drugs.” 2012-Ohio-587, ¶ 23, citing R.C. 2944.22(A). The court relied
on Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 91 L. Ed. 422
(1947), in making this conclusion. In Resweber, Willie Francis was placed in the
electric chair, but when the switch was thrown, there was a mechanical difficulty
and death did not result. Id. at 460. A plurality of the United States Supreme Court
held that a proposed second execution of Francis did not violate the Fifth, Eighth
or Fourteenth Amendments. Because the court viewed the failed execution as an
accident, it determined that the Double Jeopardy Clause did not preclude the state
from carrying out the sentence. Id. at 463.
{¶ 24} The Eighth District noted that the Resweber dissenters
“distinguished the application of electricity to the inmate from merely placing the
inmate in the electric chair with no application of electricity.” 2012-Ohio-587 at
¶ 22. By analogy, the court of appeals reasoned, the insertion of IV lines is merely
a “preparatory” step to the execution. Until the lethal drugs flow through the tubes,
the court reasoned, the state has not yet punished Broom within the meaning of the
Fifth Amendment. Id. at ¶ 23. Thus, according to the court, the Double Jeopardy
Clause has no application to multiple execution attempts. Id. at ¶ 25.
{¶ 25} The state agrees with the assessment of the court of appeals. It
contends that when the preparatory actions proved unsuccessful, the state halted the
execution and the imposed sentence was never carried out. Therefore, the state
argues, a second attempt to carry out that sentence will not violate the Double
Jeopardy Clause. The state cites R.C. 2949.22(A), which provides that “a death
sentence shall be executed by causing the application to the person, upon whom
the sentence was imposed, of a lethal injection of a drug or combination of drugs.”
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(Emphasis added.) The state reads this language to mean that the execution attempt
does not begin until lethal force or measure is applied.
{¶ 26} We agree. There is no question that lethal drugs did not enter
Broom’s body. The execution attempt was halted after preparations to establish a
viable IV line were unsuccessful. The establishment of viable IV lines is a
necessary preliminary step, but it does not, by itself, place the prisoner at risk of
death. As the statute makes clear, the execution commences when the lethal drug
enters the IV line. In this case, because the attempt did not proceed to the point of
injection of a lethal drug into the IV line, jeopardy never attached. Because there
is no violation of the Fifth Amendment protection against double jeopardy, the state
is not barred from a second attempt to execute Broom’s death sentence.
Due Process Concerns
{¶ 27} In his second proposition of law, Broom raises two due-process
concerns. First, he alleges that the trial court should have permitted him to conduct
discovery and should have held a hearing on his petition for postconviction relief.
Second, he argues that the Eighth District adopted a new standard—deliberate
indifference—to analyze his petition and that the appellate court should have
remanded the case to the trial court to hold a hearing under that standard.
Discovery and Hearing
{¶ 28} A postconviction proceeding is not an appeal of a criminal
conviction but, rather, is a collateral, civil attack on a criminal judgment. State v.
Steffen, 70 Ohio St. 3d 399, 410, 639 N.E.2d 67 (1994). The right to file a
postconviction petition is a statutory right, not a constitutional right. State v.
Calhoun, 86 Ohio St. 3d 279, 281, 714 N.E.2d 905 (1999). Thus, R.C. 2953.21
grants a petitioner only those rights specifically enumerated in its provisions and
no more. Calhoun at 281. This court has never held that there is a right to discovery
in postconviction proceedings. See State ex rel. Love v. Cuyahoga Cty.
Prosecutor’s Office, 87 Ohio St. 3d 158, 159, 718 N.E.2d 426 (1999). And because
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R.C. 2953.21 is silent about discovery, the decision to grant or deny a request for
discovery rests with a trial court’s sound discretion.
{¶ 29} An evidentiary hearing is not automatically guaranteed each time a
defendant files a petition for postconviction relief. R.C. 2953.21(C) (“Before
granting a hearing on a petition * * *, the court shall determine whether there are
substantive grounds for relief” [emphasis added]). A trial court has the discretion
to deny a postconviction petition without discovery or an evidentiary hearing if the
petition, supporting affidavits, documentary evidence, and trial record do not
demonstrate “sufficient operative facts to establish substantive grounds for relief.”
(Emphasis added.) Calhoun at paragraph two of the syllabus. To warrant an
evidentiary hearing in a postconviction proceeding, a petitioner must submit
evidence outside the record that sufficiently establishes that the petitioner is entitled
to relief on one or more asserted constitutional grounds. R.C. 2953.21(A); Calhoun
at 283.
{¶ 30} The decision to grant or deny a postconviction petition should be
upheld absent an abuse of discretion, and a reviewing court should not overrule the
trial court’s determination if it is supported by competent and credible evidence.
State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58.
{¶ 31} Here, there is no indication that further discovery or a hearing is
required. Broom submitted an affidavit and other documentary exhibits, deposition
testimony from participants at his attempted execution and other transcripts from
the federal proceeding in Cooey v. Strickland, case No. 04-cv-1156, and
photographs of his puncture marks. There is no dispute as to any operative fact in
connection with the events of September 14 and 15, 2009. Although he made a
vague request in his postconviction petition for discovery and a hearing, a review
of the docket shows that Broom never filed a discovery request while the matter
was pending in the trial court. He also has failed to proffer what that additional
discovery was or how a hearing would aid the trial court in resolving the legal
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questions before it. We agree with the court of appeals that the trial court based its
decision on the undisputed and voluminous evidence it had and that the trial judge
did not abuse his discretion in denying Broom’s petition without additional
discovery or an evidentiary hearing. There is no need for remand on this issue.
Deliberate Indifference
{¶ 32} The trial court dismissed Broom’s postconviction petition because,
although “repeated needle sticks are indeed unpleasant, they are not torture” and
because there was not a substantial risk of serious harm present. The Eighth
District, however, used a different method of reasoning. After holding that multiple
execution attempts do not per se constitute cruel and unusual punishment, 2012-
Ohio-587 at ¶ 24, the majority opinion divided Broom’s allegations into two
categories: injuries allegedly sustained as a result of the state’s following its
execution protocol, and injuries allegedly sustained as a result of the state’s
deviating from its execution protocol. Treating the first category as a facial
challenge to Ohio’s execution protocol, the court of appeals rejected the challenge
as untimely. Id. at ¶ 31 and 34. The court also cited federal-court decisions
affirming the constitutionality of state lethal-injection protocols. Id. at ¶ 35, citing
Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (affirming Kentucky’s
three-drug execution protocol); Cooey, 589 F.3d at 227-228 (holding that the failure
to impose a time limit on the search for accessible veins did not make Ohio’s
protocol unconstitutional).
{¶ 33} The Eighth District then separately analyzed Broom’s allegations
that prison officials deviated from Ohio’s execution protocol in his attempted
execution using the conditions-of-confinement standard, which requires proof of
the state official’s subjective state of mind. 2012-Ohio-587 at ¶ 47-48.
{¶ 34} We disagree with this analysis. The process of carrying out an
execution is more analogous to the method-of-execution cases than to conditions-
of-confinement cases. Moreover, according to the plurality opinion in Baze, to
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prevail on an Eighth Amendment claim based on a risk of future harm, “there must
be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm.’ ”
(Emphasis added.) Baze, 553 U.S. at 50, 128 S. Ct. 1520, 170 L. Ed. 2d 420, quoting
Farmer v. Brennan, 511 U.S. 825, 842, 846, 114 S. Ct. 1970, 128 L. Ed. 2d 811
(1994), and fn. 9. This formulation appears irreconcilable with a requirement of
proof of a prison official’s subjective intent. Jackson v. Danberg, 594 F.3d 210,
223 (3d Cir.2010), fn. 16 (Baze does not incorporate deliberate-indifference
language into method-of-execution cases).
{¶ 35} Although we do not agree with the Eighth District’s use of the
deliberate-indifference standard, the trial court properly relied on Resweber and
Baze to shape its analysis. As there was no due-process violation, it is not necessary
to remand for a further hearing.
Cruel and Unusual Punishment
The Eighth Amendment to the United States Constitution
{¶ 36} The Eighth Amendment to the United States Constitution states,
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” The death penalty has been acknowledged as an
acceptable form of punishment since the adoption of the U.S. Constitution and the
Bill of Rights. Glossip v. Gross, __ U.S. __, 135 S. Ct. 2726, 2731, 192 L. Ed. 2d
761 (2015). The United States Supreme Court has recognized that the Eighth
Amendment prohibition on cruel and unusual punishments imposes two separate
limitations. The first is a requirement of proportionality, Miller v. Alabama, __
U.S. __, 132 S. Ct. 2455, 2463, 183 L. Ed. 2d 407 (2012), and the second is a
prohibition against specific torturous methods of punishment, Graham v. Florida,
560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). Broom’s challenge does
not fit neatly into either category.
{¶ 37} In noncapital cases, the Eighth Amendment proportionality principle
is narrow and “ ‘forbids only extreme sentences’ ” that are grossly disproportionate
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to the crime. Graham, 560 U.S. at 59-60, quoting Harmelin v. Michigan, 501 U.S.
957, 1001, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring). In
capital cases, proportionality analysis involves two subsets, “one considering the
nature of the offense, the other considering the characteristics of the offender.” Id.
at 60. With respect to the nature of the offense, proportionality in capital cases
merely stands for the proposition that the punishment must fit the crime. See, e.g.,
Kennedy v. Louisiana, 554 U.S. 407, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008)
(holding that an offender’s death sentence for the rape of a child who did not die is
unconstitutionally disproportionate).
{¶ 38} As for the second category, the United States Supreme Court has
held that the death penalty is unconstitutionally disproportionate when imposed
upon individuals whose personal characteristics diminish their personal moral
responsibility for the crimes they have committed. Roper v. Simmons, 543 U.S.
551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (prohibiting the execution of juvenile
offenders); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335
(2002) (forbidding the execution of a defendant with intellectual disability). But
Broom suggests no reason why his case might fall under this line of jurisprudence.
{¶ 39} With regard to method of execution, the United States Supreme
Court has long held that punishments are cruel “when they involve torture or a
lingering death,” In re Kemmler, 136 U.S. 436, 447, 10 S. Ct. 930, 34 L. Ed. 519
(1890), or when they “involve the unnecessary and wanton infliction of pain,”
Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981),
quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 49 L. Ed. 2d 859
(1976). The United States Supreme Court has never struck down a specific
execution method as cruel and unusual. Instead, the court has offered examples of
execution methods that would constitute “torture or lingering death” as negative
contrasts to a more humane method the court chose to affirm. For example, in
affirming the constitutionality of execution by firing squad, the court contrasted the
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practice with live disemboweling, beheading, and quartering; with burning alive;
and with public dissection. Wilkerson v. Utah, 99 U.S. 130, 135, 25 L. Ed. 345
(1878); see also In re Kemmler at 446-447 (affirming the constitutionality of
electrocution but stating that crucifixion and the breaking wheel would be cruel);
Baze v. Rees, 553 U.S. 35, 94-99, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008) (Thomas,
J., concurring) (contrasting lethal injection to flaying, branding cheeks,
dismemberment, cutting off hands or ears, and slitting nostrils).
{¶ 40} The foremost consideration, when analyzing a method of execution,
is often the “objective evidence of the pain involved in the challenged method.”
Campbell v. Wood, 18 F.3d 662, 682 (9th Cir.1994); accord Cooey v. Strickland,
589 F.3d 210, 223 (6th Cir.2009). But pain is not necessarily the only indicator of
cruelty. The Eighth Amendment also demands that a penalty accord with “ ‘the
dignity of man.’ ” Hope v. Pelzer 536 U.S. 730, 738, 122 S. Ct. 2508, 153 L. Ed. 2d
666 (2002), quoting Trop v. Dulles, 356 U.S. 86, 100, 78 S. Ct. 590, 2 L. Ed. 2d 630
(1958) (lead opinion).
{¶ 41} In its most recent method-of-execution case, the United States
Supreme Court examined whether Oklahoma’s lethal-injection protocol violated
the Eighth Amendment. The court followed the plurality opinion in Baze and noted
that a prisoner’s challenge to a method of execution under the Eighth Amendment
will fail unless the prisoner establishes that the method of execution presents a
substantial risk of serious harm that is objectively intolerable and prevents prison
officials from claiming that they were subjectively blameless. Glossip, 135 S. Ct.
at 2737, 192 L. Ed. 2d 761 (rejecting prisoners’ claim for Eighth Amendment
violation because they failed to establish a substantial risk of harm and a known
and available alternative). It is not enough that a prisoner shows that there is a
slightly or marginally safer alternative. Instead, the prisoner must identify an
alternative that is “ ‘feasible, readily implemented, and in fact significantly
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reduce[s] a substantial risk of severe pain.’ ” (Brackets sic.) Id., quoting Baze, 553
U.S. at 52, 128 S. Ct. 1520, 170 L. Ed. 2d 420.
{¶ 42} Broom’s actual sentence of death is not at issue, nor does this case
concern Ohio’s chosen method of execution. Instead, Broom asserts that a second
execution attempt would constitute cruel and unusual punishment. He claims that
what he already experienced went beyond the time, pain, and emotional anguish
involved in a “normal” execution. Because there is no guarantee of success, Broom
contends, any further attempt to execute him would be cruel and unusual.
{¶ 43} Broom’s claim has no precedent in Ohio. The United States
Supreme Court, however, considered whether a failed execution attempt violated
the Eighth Amendment in Resweber. After the mechanical difficulty with the
electric chair failed to result in Francis’s death, a new death warrant was issued.
Id., 329 U.S. at 460, 67 S. Ct. 374, 91 L. Ed. 422. Francis objected and argued that
once he underwent “the psychological strain of preparation for electrocution,” to
require him to undergo the preparation a second time would subject him to lingering
or cruel and unusual punishment. Id. at 464. A four-member plurality rejected this
argument, because “[t]he 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.”
(Emphasis added.) Id. at 464.
{¶ 44} The dissenting justices noted that electrocution is statutorily and
constitutionally permissible only if it is “so instantaneous and substantially painless
that the punishment shall be reduced, as nearly as possible, to no more than that of
death itself.” Id. at 474 (Burton, J., dissenting). The dissenters rejected the prospect
of execution by installments, what they termed “a delayed process of execution.”
Id. at 474-475.
{¶ 45} Justice Frankfurter cast the deciding vote. He joined the plurality to
reject Francis’s appeal because he did not believe that the Fourteenth Amendment
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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 principle of justice so
rooted in the traditions and conscience of our people as to be ranked as
fundamental.” Id. at 469 (Frankfurter, J., concurring), quoting Snyder v.
Massachusetts, 291 U.S. 97, 105, 54 S. Ct. 330, 78 L. Ed. 674 (1934). Justice
Frankfurter did not believe that Louisiana’s treatment of Francis rose to that level.
As a result, Willie Francis went to the electric chair a second time.
{¶ 46} Based on Resweber, we determine, as did the Eighth District, that
there is no per se prohibition against a second execution attempt based on the Cruel
and Unusual Punishments Clause of the Eighth Amendment. The state’s intention
in carrying out the execution is not to cause unnecessary physical pain or
psychological harm, and the pain and emotional trauma Broom already experienced
do not equate with the type of torture prohibited by the Eighth Amendment.
{¶ 47} Having determined that allowing the state to go forward with
Broom’s execution does not amount to a per se violation of the Eighth Amendment,
we consider whether it is violated under the test set forth in Glossip and Baze.
Broom argues that the state should have known of the potential problems with his
execution beforehand. He submitted evidence that the state experienced problems
establishing and maintaining IV catheters during the previous executions of Joseph
Clark and Christopher Newton and that problems should have been expected when
Broom’s first vein assessment indicated that there may be trouble accessing the
veins. But, it is unclear from the record why Broom’s execution team was unable
to establish IV access. Although Dr. Heath suggested that it was poor technique, it
1
The United States Supreme Court later repudiated Frankfurter’s position: The Due Process Clause
of the Fourteenth Amendment does incorporate the Eighth Amendment’s protections against cruel
and unusual punishments against the states. Robinson v. California, 370 U.S. 660, 666-667, 82
S. Ct. 1417, 8 L. Ed. 2d 758 (1962).
16
January Term, 2016
is Broom’s burden to establish that he is likely to suffer severe pain if required to
undergo a second execution.
{¶ 48} Further, in December 2009, less than three months after the attempt
to execute Broom, the Sixth Circuit rejected a constitutional challenge to Ohio’s
execution protocol, noting that “[s]peculations, or even proof, of medical
negligence in the past or in the future are not sufficient to render a facially
constitutionally sound protocol unconstitutional.” Cooey, 589 F.3d at 225. The
protocol that the Sixth Circuit reviewed in Cooey has been amended and we cannot
assume that the same problems with IV access will befall Broom again.
{¶ 49} Broom also contends that the state’s violation of the execution
protocols indicates that prison officials were not blameless and created a substantial
risk of harm. We agree that compliance with execution protocols is the best way
to avoid the risk of severe pain, but deviation from a protocol is not an automatic
constitutional violation. See In re Ohio Execution Protocol Litigation (Wiles), 868
F. Supp. 2d 625, 626 (S.D.Ohio 2012) (protections of the United States Constitution
“do not require perfect adherence to every single provision of Ohio’s execution
protocol without deviation”). We are not convinced, however, that Broom has
established that the state is likely to violate its execution protocol in the future.
{¶ 50} Following the events of September 15, 2009, the state was enjoined
from carrying out the executions of Kenneth Smith and Charles Lorraine based in
large part on the district court’s determination that Ohio was not following its
execution protocol. See Cooey v. Kasich, 801 F. Supp. 2d 623 (S.D.Ohio 2011); In
re Ohio Execution Protocol Litigation (Lorraine), 840 F. Supp. 2d 1044 (S.D.Ohio
2012).
{¶ 51} The state sought to address the concerns of the federal district court.
It amended the protocol, adding a new command structure and forms that were
required to be filled out as each step of the protocol was completed to ensure
compliance. In re Ohio Execution Protocol Litigation (Wiles), 868 F. Supp. 2d 625,
17
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629-632 (S.D.Ohio 2012). The state sufficiently demonstrated a commitment to
follow the protocol and was allowed to proceed with the execution of Mark Wiles.
Id. at 652. Several more executions occurred without any apparent violation of the
protocol. In re Ohio Execution Protocol Litigation (Phillips), S.D.Ohio No. 2:11-
cv-1016, 2013 WL 5963150, *11-16 (Nov. 7, 2013). This led the district court to
conclude that “ ‘Ohio does not have a perfect execution system, but it has a
constitutional system that it appears to be following.’ ” Id., quoting In re Ohio
Execution Protocol Litigation (Hartman), 906 F. Supp. 2d 759, 791 (S.D.Ohio
2012).
{¶ 52} While we acknowledge that the state failed to follow the protocol in
2009, we cannot ignore what has transpired since then. The state has executed 21
death-row inmates since the attempted execution of Broom. See Ohio Department
of Rehabilitation and Correction, Ohio Executions—1999 to Present,
http://www.drc.ohio.gov/web/executed/executed25.htm (last updated Jan. 16,
2014).
{¶ 53} To be clear, the state must comply with the protocol as amended.
Strict compliance with the protocol will ensure that executions are carried out in a
constitutional manner and can also prevent or reveal an inmate’s attempt to interfere
with the execution process.2 We simply are unable to conclude that Broom has
2
At oral argument, the state speculated that Broom himself caused the difficulty in accessing his
veins by taking antihistamines to dehydrate himself. There was also reference in the official timeline
of Broom’s execution that the “[m]edical team [was] having [a] problem maintaining an open vein
due to past drug use.” However, there is no evidence in the record supporting either allegation. We
mention these allegations only to illustrate that following the current execution protocol could reveal
potential problems with IV access. For instance, the protocol requires four vein checks and a review
of the inmate’s medical chart, which may include information regarding prior drug use. Ohio
Department of Rehabilitation and Correction, Policy No. 01-COM-11, at 6, 9, 11,
http://www.drc.ohio.gov/web/drc_policies/documents/01-COM-11.pdf (accessed Jan. 25, 2016).
Also, after transfer to the Death House, the inmate is to be constantly monitored by at least three
members of the execution team who are required to maintain an execution timeline. Id. at 9. The
execution timeline is supposed to record certain specified events, such as the vein checks and other
information at the discretion of the execution team. Id. at 2. And certainly, the ingestion of
antihistamines should be a noteworthy event.
18
January Term, 2016
established that the state in carrying out a second attempt is likely to violate its
protocol and cause severe pain.
{¶ 54} We therefore conclude that the Eighth Amendment does not bar the
state from carrying out Broom’s execution.
Article I, Section 9 of the Ohio Constitution
{¶ 55} Broom has also sought relief under the Ohio Constitution. Article I,
Section 9 of the Ohio Constitution provides, “Excessive bail shall not be required;
nor excessive fines imposed; nor cruel and unusual punishments inflicted.” This
court has long held that the Ohio Constitution is a “document of independent force.”
Arnold v. Cleveland, 67 Ohio St. 3d 35, 616 N.E.2d 163 (1993), paragraph one of
the syllabus. The U.S. Constitution provides a floor for individual rights and civil
liberties, but state constitutions are free to accord greater protections. Id. And
recently, this court held for the first time that Article I, Section 9 provides protection
“independent of” the Eighth Amendment. In re C.P., 131 Ohio St. 3d 513, 2012-
Ohio-1446, 967 N.E.2d 729, ¶ 59. But we have also noted that cases involving
cruel and unusual punishments are rare, “limited to those involving sanctions which
under the circumstances would be considered shocking to any reasonable person.”
McDougle v. Maxwell, 1 Ohio St. 2d 68, 70, 203 N.E.2d 334 (1964).
{¶ 56} When the execution team was unable to establish IV lines, the
attempt to execute Broom was halted. Because the lethal-injection drugs were
never introduced into the IV lines, the execution was never commenced. The state
also demonstrated in the executions that were conducted after September 2009 that
it is committed to following the protocols as written. Because Broom’s life was
never at risk since the drugs were not introduced, and because the state is committed
to carrying out executions in a constitutional manner, we do not believe that it
would shock the public’s conscience to allow the state to carry out Broom’s
execution. We therefore conclude that Article I, Section 9 of the Ohio Constitution
does not bar the state from executing Broom’s death sentence.
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Conclusion
{¶ 57} The judgment of the Cuyahoga County Court of Appeals is affirmed.
Judgment affirmed.
O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., concur.
FRENCH, J., dissents with an opinion in which PFEIFER, J., joins.
O’NEILL, J., dissents with an opinion.
____________________
FRENCH, J., dissenting.
{¶ 58} The majority’s decision to deny Romell Broom an evidentiary
hearing on his Eighth Amendment claim is wrong on the law, wrong on the facts,
and inconsistent in its reasoning. The majority adopts the trial court’s conclusion
that an evidentiary hearing is unnecessary because “[t]here is no dispute as to any
operative fact in connection with the events of September 14 and 15, 2009.”
Majority opinion at ¶ 31. And then, with no apparent awareness of the
contradiction, the majority rejects Broom’s request for a hearing precisely because
it finds an unresolved dispute of fact at the heart of the case, namely, the reason for
the state’s inability to establish IV access at the start of Broom’s attempted
execution.
{¶ 59} The court today holds that Broom is not entitled to an evidentiary
hearing to prove his Eighth Amendment claim because he failed to prove his claim
at the pleading stage; that is not the correct legal standard under R.C. 2953.21(E).
The court then compounds its error by seeking evidence outside the record to prove
that the state has cured the problems in its execution procedures and seizing on an
execution protocol that is no longer in effect.
{¶ 60} For these reasons, I dissent.
LEGAL FRAMEWORK
{¶ 61} A method of execution violates the Eighth Amendment if it presents
a risk that is sure or very likely to cause serious illness and needless suffering and
20
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give rise to sufficiently imminent dangers. Glossip v. Gross, ___ U.S. ___, 135
S. Ct. 2726, 2737, 192 L. Ed. 2d 761 (2015). “[T]here must be a ‘substantial risk of
serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials
from pleading that they were ‘subjectively blameless for purposes of the Eighth
Amendment.’ ” Baze v. Rees, 553 U.S. 35, 50, 128 S. Ct. 1520, 170 L. Ed. 2d 420
(2008) (plurality opinion), quoting Farmer v. Brennan, 511 U.S. 825, 842, 846, 114
S. Ct. 1970, 128 L. Ed. 2d 811 (1994), and fn. 9. The controlling opinion in Baze
recognized that a series of abortive execution attempts might demonstrate an
objectively intolerable risk of harm. Id.
{¶ 62} The majority opinion offers two reasons why Broom supposedly
failed to satisfy the Glossip/Baze formula; both are unpersuasive.
1. Broom’s evidence of a risk of serious harm
{¶ 63} After reviewing the evidence from Broom’s postconviction petition,
the court opines that it is “unclear from the record why Broom’s execution team
was unable to establish IV access.” Majority opinion at ¶ 47. The logic appears to
be that if he cannot prove why the errors occurred, then he cannot prove that they
will recur.
{¶ 64} The court’s reasoning rests on a misapplication of a petitioner’s
burden of proof when filing a postconviction petition. Before granting a hearing
on a petition, a trial court must consider whether it presents “substantive grounds
for relief.” R.C. 2953.21(C). A trial court acts within its discretion when it
dismisses a petition without a hearing if the evidence and affidavits submitted by
the petitioner fail to set forth “ ‘sufficient operative facts to establish substantive
grounds for relief.’ ” State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 51, quoting State v. Calhoun, 86 Ohio St. 3d 279, 714 N.E.2d 905
(1999), paragraph two of the syllabus.
{¶ 65} The requirement that a petitioner present “sufficient operative facts”
in order to secure an evidentiary hearing does not mean that the facts presented
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must be undisputed. The court’s application of R.C. 2953.21(C) effectively
eliminates the possibility of an evidentiary hearing in every case: either the petition
fails to establish substantive grounds for relief, in which case the petitioner is not
entitled to a hearing, or the evidence and affidavits establish grounds for relief
beyond dispute, in which case an evidentiary hearing would be superfluous.
{¶ 66} When considered in its totality, Broom’s petition contained
sufficient operative facts to warrant a hearing. The evidence in the record, if
believed, would establish that the state has repeatedly and predictably had problems
establishing and maintaining access to inmates’ veins, that these problems are the
result of medical incompetence on the part of the execution team members
responsible for inserting IV catheters, and that the incompetence of the execution
staff makes it more than likely that these problems will recur in future executions.
{¶ 67} As the majority correctly notes, the execution team unsuccessfully
inserted IV catheter needles into at least 18 separate injection sites on Broom’s
body, and the actual number of catheter insertions was much greater than the
number of needle marks because injection sites were used multiple times. But the
majority gives scant attention to the testimony of Dr. Heath concerning the
magnitude of medical incompetence displayed or to evidence of the state’s long,
problematic history with IV catheters in lethal-injection procedures.
{¶ 68} As Dr. Heath explained, execution drugs are administered through a
peripheral IV catheter, which consists of a hollow needle surrounded by a plastic
tube called the catheter. The practitioner inserts both the needle and the catheter
into the vein. Thus, although blood draws and IV catheters both involve needle
pricks, the latter also includes the insertion of an object with a wider diameter.
{¶ 69} Dr. Heath testified that in Broom’s case, the medical team inserted
the catheters improperly and in a fashion likely to cause greater pain:
22
January Term, 2016
And what [Broom] described did not sound right to me at all in terms
of proper procedure. He described the depth into his muscle which
they were pushing the catheter, going all the way up to the hub of
the catheter, which is well over an inch deep, and going in at a very
steep angle, which does not comport with proper technique or
what’s going to be a successful technique for getting a catheter into
a vein.
Q: And what kind of—what kind of response would a
human body have to that kind of technique?
A: It would hurt.
The fact that the medical team attempted to insert the catheter into Broom’s arm in
a nearly perpendicular line “bespeaks of bizarre and certainly poor technique” that
had “no possibility of achieving insertion.” Even the Lucasville physician inserted
the catheter into Broom’s ankle at the wrong angle, which is why she struck bone.
{¶ 70} On two occasions, after getting the catheter into Broom’s veins, team
members “botched up that relatively simple process of attaching the I.V. tubing into
the hub of the catheter, and blood sprayed everywhere.” Compounding the
problem, the team member who inserted the catheter was not wearing gloves during
the procedure, thereby increasing the risk of unsuccessfully attaching the tubing.
{¶ 71} Dr. Heath testified that clinical competence demands that attempts
at peripheral IV access be abandoned long before the 19th attempt. The Lucasville
physician agreed with this assessment, testifying that if she had known that 18
attempts had already been made on Broom, she never would have stuck him with a
needle. And although it can be proper practice to “fish” a vein—partially
withdrawing a catheter, then reinserting it at a different angle—it was “completely
unacceptable [and] far beyond any acceptable standard” to have made as many
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insertion attempts through the same needle holes as the medical team apparently
did.
{¶ 72} The Broom execution attempt was not the first time the medical
execution team had difficulty inserting an IV catheter. During Ohio’s very first
lethal injection, that of Wilford Berry in 1999, the medical team members
responsible for the IV catheter line were unable to locate a vein in Berry’s arm and
had to call a third team member for assistance. When the state executed Christopher
Newton in 2007, the medical team needed approximately 90 minutes to establish
two IV lines. And during the 2009 execution of Marvallous Keene, the team had
to switch to a backup line because they could not get fluid to flow.
{¶ 73} But the most disastrous execution prior to the attempted execution
of Broom was that of Joseph Clark on May 2, 2006. Based on the end-of-the-day
needle count in Clark’s case, the execution team used 17 or 18 needles trying to
establish two IV lines and never did manage to install the backup line before
ultimately executing him. As in Broom’s case, Dr. Heath was critical of the
decision in Clark’s case to continue fruitlessly trying to establish the IV, testifying
that he would not subject a patient to more than six to ten attempts, because “any
normal practitioner” will recognize by that point that the effort is futile and is only
inflicting needless pain on the patient.
{¶ 74} Dr. Heath offered a simple explanation for the state’s failures:
incompetence. “[I]t is my opinion that the veins on Mr. Broom’s arms, other areas
of his body, should be easily accessible by a competent team.” Part of the problem,
he opined, arose from the fact that Ohio had lax standards regarding who may install
a peripheral IV catheter during an execution. The person inserting the peripheral
IV catheter should be someone who performs that task as part of his or her daily
job duties. But Ohio’s protocol required only one year of experience, with no
limitation on how remote in time that experience might be.
24
January Term, 2016
{¶ 75} Team Member 9, who participated in the Broom procedure, is a
phlebotomist. But drawing blood, which is what phlebotomists do, is a “much
easier and simpler” process that is “far less fraught with problems” than inserting a
catheter in order to inject drugs into the body. Dr. Heath testified that allowing a
phlebotomist such as Member 9 to handle the insertion at an execution is “deeply
inappropriate and reflects a deep misunderstanding and deep inability of what is
needed to assemble an appropriate [execution] team.”
{¶ 76} Nor was severe pain from inserting the IV catheter the only potential
harm Dr. Heath identified. During the execution of Joseph Clark, a process known
as infiltration occurred. “Infiltration” means the catheter needle is no longer in the
vein, and the drug is being administered into tissue surrounding the vein.
Infiltration of sodium thiopental may cause “very significant pain,” either due to a
pH imbalance or from the sudden accumulation of fluid in the tissue.
{¶ 77} The protocol in effect at the time of Broom’s attempted execution
called for administration of sodium thiopental as the first of three drugs. The
current protocol, effective June 29, 2015, permits the use of sodium thiopental at
the discretion of the warden. Ohio Department of Rehabilitation and Correction,
Policy No. 01-COM-11, at 15, http://www.drc.ohio.gov/web/drc_policies
/documents/01-COM-11.pdf (“Current Protocol”) (accessed Feb. 29, 2016). But
there is no evidence in the record to indicate whether infiltration is a sign of
negligence or merely an unavoidable risk, even if performed by the most skilled
practitioners.
{¶ 78} In the face of this evidence, it is disingenuous to dismiss Broom’s
petition on the grounds that it is “unclear” why the execution team was unable to
establish IV access. The majority opinion cites no evidence in the record for an
alternative explanation of the state’s failure, nor could it, given that the state failed
to submit any evidence. And if the majority truly believes that the cause is unclear,
that is all the more reason to have an evidentiary hearing to resolve the question.
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{¶ 79} Nor does the majority explain its conclusory assertion that Broom
failed to establish a likelihood that he will suffer severe pain in the future. There is
no evidence in the record to suggest that the state has improved the training of its
execution team members or increased the certification requirements to perform
these tasks. In fact, Ohio’s current execution protocol still requires only one year
of experience.3 If the state cannot explain why the Broom execution went wrong,
then the state cannot guarantee that the outcome will be different next time.
2. Ohio’s current execution protocol
{¶ 80} In an attempt to bolster its conclusion, the majority reaches outside
the record for evidence that the state has improved its execution procedures.
Specifically, it cites the Sixth Circuit’s decision in Cooey v. Strickland, 589 F.3d
210 (6th Cir.2009), for the proposition that Ohio’s current execution protocol
passes constitutional muster. Therefore, the majority asserts, “we cannot assume
that the same problems with IV access will befall Broom again.” Majority opinion
at ¶ 48. This argument misunderstands Cooey and improperly shifts the burden of
proof.
{¶ 81} As explained in Cooey, in the aftermath of Broom’s attempted
execution, the state made two changes to its execution protocol. First, it switched
from a three-drug protocol to a one-drug protocol. Id. at 215. But since the one
drug was still administered intravenously, id. at 219, this change did nothing to
remedy the problem of incompetent insertion of IV catheters.
{¶ 82} Second, the new protocol authorized a two-drug, intramuscular
injection as a backup procedure if the execution team cannot obtain IV access.
Specifically, if the warden and director determine that IV injections cannot or
should not be used, then the state may administer an injection of midazolam and
3
See Current Protocol at 2.
26
January Term, 2016
hydromorphone intramuscularly. Id. at 220. But in January 2015, five years after
Cooey, the state removed midazolam and hydromorphone from its execution
protocol.4 And that leaves the state back where it began, with a protocol that
mandates intravenous injection and provides no intramuscular backup.5
{¶ 83} The majority opinion notes that the amended protocol added “a new
command structure and forms that were required to be filled out as each step of the
protocol was completed.” Majority opinion at ¶ 51. It cites In re Ohio Execution
Protocol Litigation (Wiles), 868 F. Supp. 2d 625 (S.D.Ohio 2012), for the
proposition that the state “sufficiently demonstrated a commitment to follow the
protocol” to persuade the federal court to allow executions to proceed. Majority
opinion at ¶ 51. And it concludes by announcing that this court is “not convinced
* * * that Broom has established that the state is likely to violate its execution
protocol in the future.” Id. at ¶ 49. The majority’s reasoning is faulty for three
reasons.
{¶ 84} First, the majority opinion does not explain how the new command
structure in the amended protocol will remedy the problem of medical
incompetence identified in Broom’s petition. Additional paperwork will not
improve the execution team’s ability to insert an IV catheter.
{¶ 85} Second, Wiles addressed whether the state was violating the Equal
Protection Clause in its administration of its lethal-injection protocol, not the Eighth
Amendment. 868 F. Supp. 2d at 636-637. The district court observed “a consistent
pattern of arbitrary deviations from the protocol.” Id. at 640. In the context of an
Equal Protection claim, the state’s assurances that it would strictly comply with
written procedures in the future was relevant. But Wiles is irrelevant to Broom’s
claim under the Eighth Amendment.
4
Ohio Department of Rehabilitation and Correction, Ohio Revises Lethal Injection Protocol,
http://www.drc.ohio.gov/Public/press/press436.htm (accessed Feb. 29, 2016).
5
See Current Protocol at 15-16.
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{¶ 86} Third, the majority’s assertion that Broom failed to prove that the
state will deviate in the future is deeply unfair. Assuming that the written protocol
is even relevant (which it is not), the state’s assurance of future compliance is in
essence an affirmative defense. The majority is effectively shifting the burden of
proof by faulting Broom for not rebutting evidence that the state did not even
introduce into the record. And when exactly was Broom supposed to introduce
such evidence? All the evidence in the record comes from the postconviction
petition filed September 15, 2010. The majority relies on subsequent events and
documents not contained in the record. If the majority truly believes that recent
events are relevant to adjudicating Broom’s petition, the answer is to remand the
petition for an evidentiary hearing, not for this court to make its own assessment
without a record or input from the parties.
CONCLUSION
{¶ 87} We should remand Broom’s case to the trial court for an evidentiary
hearing. With this disposition, it is unnecessary and premature for the court to
address any other legal questions. I dissent.
PFEIFER, J., concurs in the foregoing opinion.
____________________
O’NEILL, J., dissenting.
{¶ 88} Respectfully, I must dissent.
{¶ 89} Shortly after I joined this court in 2013, we granted a motion to set
an execution date for Jeffrey A. Wogenstahl. State v. Wogenstahl, 134 Ohio St. 3d
1437, 2013-Ohio-164, 981 N.E.2d 900. I dissented from the scheduling order on
the theory that capital punishment violates the Eighth Amendment to the
Constitution of the United States and Article I, Section 9 of the Ohio Constitution.
Id. at ¶ 2. Appellant Romell Broom’s first execution date—a botched attempt—
was the example I offered to support my belief that even lethal injection is a cruel
28
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punishment on par with the “decapitations, hangings, and brandings” that were
common in a less civilized time. Id. at ¶ 3-6.
{¶ 90} We have now come full circle. Broom is here once again on review
of a successive petition for postconviction relief arguing, among other things, that
a second execution attempt would constitute cruel and unusual punishment.
Clearly, it would.
{¶ 91} The majority’s description of the state’s first attempt to put Broom
to death chills me to the core. It is not only the rights of the defendant that are in
play here. There are state employees who have tragically endured the personal
trauma of unsuccessfully attempting to execute a fellow human being. And now
we, as a society, are telling them, “Do it again.” I can only imagine the
apprehension Broom and his executioners must be feeling now as they prepare for
and await a second attempt.
{¶ 92} Once again, this case demonstrates that the term “lethal injection” is
merely a convenient euphemism used to aid in turning a blind eye to the real
possibility that execution procedures can and do go wrong with predictable and
horrendous results. The phrase itself implies a sanitized death unlike the stories
told in the media about Broom, Dennis McGuire, Charles Warner, Clayton Lockett,
and others.6 The record is clear that Broom was poked repeatedly with a needle
6
The Christian Science Monitor reported in 2010 that “Broom was stuck with needles at least 18
times over the course of two hours” and that “[t]hat incident followed two others in Ohio during the
past three years, both of which involved difficulties inserting the IV.” Guarino, Ohio Execution Set
in Case that Changed Lethal Injection Process, Christian Science Monitor (Mar. 16, 2010),
http://www.csmonitor.com/USA/Justice/2010/0316/Ohio-execution-set-in-case-that-changed-
lethal-injection-process (accessed Mar. 1, 2016). Ohio inmate Dennis McGuire “experienced ‘true
pain and suffering’ ” during his successful execution as he “gasped, choked, clenched his fists and
appeared to struggle against his restraints for about 10 minutes * * * before being pronounced dead.”
Johnson, Dennis McGuire’s Execution Was Not ‘Humane,’ Doctor Says, Columbus Dispatch (Aug.
13, 2014), http://www.dispatch.com/content/stories/local/2014/08/12/inmate-suffered-pain-during-
execution-doctor-says.html (accessed Mar. 1, 2016), quoting a California anesthesiologist’s sworn
statement from a civil suit filed by McGuire’s children. In Oklahoma, Charles Warner suffered five
attempts at IV insertion and then exclaimed, “My body is on fire,” after executioners injected him
29
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and that pain was unquestionably inflicted, not unlike procedures that have been
recognized as torture in the past. See Wilkerson v. Utah, 99 U.S. 130, 135, 25 L. Ed.
345 (1878) (public dissection is torture); Baze v. Rees, 553 U.S. 35, 94-99, 128
S. Ct. 1520, 170 L. Ed. 2d 420 (2008) (Thomas, J., concurring) (dismemberment,
cutting off hands or ears, and slitting nostrils are torture). Any fair reading of the
record of the first execution attempt shows that Broom was actually tortured the
first time. Now we embark on the task of doing it again.
{¶ 93} Today we have the rare opportunity to address not just the cruelty
inherent in putting someone to death once—this case is about the second try.
Incredibly, the majority cites the case of Willie Francis as support for its
determination that the state does not violate the Eighth Amendment by undertaking
a second execution attempt. Majority opinion at ¶ 23. Francis may be the only
other individual in the recent history of our nation who survived a first attempt at
imposing the death penalty only to be successfully executed on the second attempt.
I absolutely reject using the Francis case in defense of our tortured American
history involving the death penalty. His very conviction is a look into the true
tragedy of all executions in America. For let us not forget—ignoring the present
case for the moment—that our national record is replete with examples of innocent
people being executed. The Willie Francis case, tragically relied upon by the
with the wrong drug. Gajanan, Oklahoma Used Wrong Drug in Charles Warner’s Execution,
Autopsy Report Says, The Guardian (Oct. 8, 2015), http://www.theguardian.com/us-
news/2015/oct/08/oklahoma-wrong-drug-execution-charles-warner (accessed Mar. 1, 2016).
Clayton Lockett also suffered more than a dozen painful attempts at IV insertion. Stern, The Cruel
and Unusual Execution of Clayton Lockett, The Atlantic (June 2015),
http://www.theatlantic.com/magazine/archive/2015/06/execution-clayton-lockett/392069/
(accessed Mar. 1, 2016). The drugs ultimately were administered to Lockett through an IV that had
dislodged from his vein. Consequently, the drugs pooled under his skin and entered his bloodstream
more slowly, and he received only a partial dose of the sedative midazolam before he died. In the
meantime, Lockett was able to wake up, struggle with his restraints strongly enough to cause “blunt-
impact injuries” to himself, and managed to say the word “Man” among other, incoherent mumbling.
Id. Lockett died “slowly and in apparent agony” while the medical team attempted to reinsert his
IV. Id.
30
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majority for the proposition that a second execution attempt is not on its face
constitutionally defective, magnifies the problems of cruelty and racial injustice in
one package and offers at once an instructive example of both the progress and
regression of our justice system.
{¶ 94} If Willie Francis had been tried for his alleged crime today, he would
not have been sent to the electric chair the first time. Francis was a 17-year-old
black male in Louisiana on May 3, 1946, the first time the state attempted to put
him to death. Miller & Bowman, Death by Installments: The Ordeal of Willie
Francis 1, 20 (1988). He had been convicted by an all-white, all-male jury. Id. at
24. Six days after being appointed, his attorneys put up no defense despite a glaring
lack of evidence. Id. at 23-26. Let me repeat that—this black teenager’s court-
appointed attorneys offered no defense in a death-penalty case in the Deep South
just after World War II. The State of Louisiana used two probably coerced
confessions that were inconsistent with forensic evidence and the story of the only
eyewitness to the murder. Id. at 23-26. He received a mandatory death sentence
and was not informed of his rights to appeal or to appointed counsel for that
purpose. Id. at 26-27. There was no appeal of his conviction or sentence. Id. And
this is the case the majority relies upon to suggest that due process is alive and well
in Ohio.
{¶ 95} Since Francis was convicted and executed, our ideas of the
Constitution have evolved substantially. Courts now recognize that it is a cruel and
unusual punishment to execute a minor. Roper v. Simmons, 543 U.S. 551, 125 S. Ct.
1183, 161 L. Ed. 2d 1 (2005). The right to a jury trial has evolved such that under
current law, Francis could have challenged the selection of his all-white, all-male
jury as well as the makeup of the pool from which the jurors were selected. See
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Taylor v.
Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975); Alexander v.
Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972). The right to
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counsel has evolved to the point where Francis’s conviction would have been
overturned as a result of counsel’s objectively unreasonable choice not to defend,
and he would have had appellate counsel to argue that issue for him. See Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Douglas v.
California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). Mandatory death
sentences, like the one Francis was given, are now unconstitutional. Sumner v.
Shuman, 483 U.S. 66, 107 S. Ct. 2716, 97 L. Ed. 2d 56 (1987). In all of these ways,
our conception of the United States Constitution has evolved. I wonder when
concepts of human dignity will evolve sufficiently that the State of Ohio will lay
down the death penalty entirely just like the more obvious forms of torture that have
been abandoned so far. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 419, 128
S. Ct. 2641, 171 L. Ed. 2d 525 (2008) (“The [Eighth] Amendment ‘draw[s] its
meaning from the evolving standards of decency that mark the progress of a
maturing society,’ ” quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2
L. Ed. 2d 630 (1958) (lead opinion)). This is because “[t]he standard of extreme
cruelty is not merely descriptive, but necessarily embodies a moral judgment. The
standard itself remains the same, but its applicability must change as the basic
mores of society change.” Furman v. Georgia, 408 U.S. 238, 382, 92 S. Ct. 2726,
33 L. Ed. 2d 346 (1972) (Burger, C. J., dissenting).
{¶ 96} On the precise question before this court—whether a second
execution attempt violates the Eighth Amendment—the United States Supreme
Court issued a fractured judgment resting entirely on a discredited theory of our
Constitution. Francis was put to death with four justices agreeing with his Eighth
Amendment argument, four disagreeing, and one justice believing that the Eighth
Amendment did not apply to the states through the Fourteenth Amendment.
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 472, 67 S. Ct. 374, 91 L. Ed.
422 (1947) (Burton, J., joined by Douglas, Murphy, and Rutledge, JJ., dissenting);
id. at 464 (lead opinion); id. at 469-470 (Frankfurter J., concurring). Our
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jurisprudence has evolved on this point as well, and the Eighth Amendment was
formally incorporated in the Fourteenth Amendment as a limitation upon the power
of the states. Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758
(1962).
{¶ 97} Despite the quirk of constitutional theory that the judgment of the
Francis court rests on, five of the justices were able to recognize the second
execution attempt for what it was: torture. Resweber at 471 (Frankfurter J.,
concurring) (“Strongly drawn as I am to some of the sentiments expressed by my
brother Burton, * * * were I to [join the dissenting opinion,] I would be enforcing
my private view rather than that consensus of society’s opinion which, for purposes
of due process, is the standard enjoined by the Constitution”); id. at 476-477
(Burton J., dissenting) (“[T]oday, two separated applications [of electricity] are
sufficiently ‘cruel and unusual’ to be prohibited”); Miller & Bowman at 125-127
and fn. 18 (the Willie Francis case weighed “so heavily on [Justice Frankfurter’s]
conscience” that he convinced a former Harvard law school classmate, a leading
member of the Louisiana bar, to seek clemency on Francis’s behalf), quoting Justice
Burton’s papers, box 171, available in Library of Congress. In this way, we have
regressed.
{¶ 98} I believe as a moral and constitutional matter that subjecting Broom
to a second execution attempt after even one extremely painful and unsuccessful
attempt is precisely the sort of “lingering death” that the United States Supreme
Court recognized as cruel within the meaning of the Eighth Amendment 125 years
ago. In re Kemmler, 136 U.S. 436, 447, 10 S. Ct. 930, 34 L. Ed. 519 (1890). For
that reason, I would reverse the judgment of the court of appeals.
{¶ 99} Consequently, I dissent.
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Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and
Christopher Schroeder, Matthew Meyer, Katherine Mullin and T. Allan Regas,
Assistant Prosecuting Attorneys, for appellee.
S. Adele Shank and Timothy F. Sweeney, for appellant.
Timothy Young, Ohio Public Defender, and Rachel Troutman, Supervisor,
Death Penalty Division, urging reversal for amicus curiae, Office of the Ohio Public
Defender.
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