In re Ohio Execution Protocol Litig.

• Decision Date: 05 November 2012
• Docket Number: Case No. 2:11–cv–1016.
• Citation: 906 F.Supp.2d 759
• Parties: In re: OHIO EXECUTION PROTOCOL LITIGATION. This document relates to: Brett Hartman.
• Court: U.S. District Court — Southern District of Ohio

906 F.Supp.2d 759

In re: OHIO EXECUTION PROTOCOL LITIGATION. This document relates to: Brett Hartman.

Case No. 2:11–cv–1016.

United States District Court,

S.D. Ohio,

Eastern Division.

Nov. 5, 2012.

John Juhasz, Lynn A. Maro, Youngstown, OH, Spiros P. Cocoves, Jeffrey M. Gamso, Toledo, OH, Gary Wayne Crim, James P. Fleisher, Michael William Krumholtz, Kirstie N. Young, Bieser, Lawrence Joseph Greger, Greger Law Office, Dayton, OH, Allen L. Bohnert, Office of the Federal Public Defender, Carol Ann Wright, Randall Lee Porter, Sharon A. Hicks, Rachel Troutman, Ohio Public Defender Office, Gregory William Meyers, Robert Brady Barnhart, David C. Stebbins, Federal Public Defenders Office, W. Joseph Edwards, Keith A. Yeazel, S. Adele Shank, William Sheldon Lazarow, Columbus, OH, John B. Gibbons, David L. Doughten, Robert Aloysius Dixon, Timothy F. Sweeney, Jeffrey F. Kelleher, R. Brian Moriarty, R. Brian Moriarty, LLC, Kevin Cafferkey, James H. Schuster, McCarthy, Lebit, Crystal & Liffman, John Patrick Parker, Cleveland, OH, Michael J. Benza, Chagrin Falls, OH, Laurence E. Komp, Ballwin, MO, Kathleen McGarry, Glorieta, NM, Alan M. Freedman, Carol R. Heise, Evanston, IL, Lori Ann McGinnis, Loudonville, OH, David Jan Graeff, Westerville, OH, Jennifer M Kinsley, Sirkin Kinsley & Nazzarine, Cincinnati, OH, for Plaintiff.

Stephen C. Gray, Charles L. Wille, David M. Henry, Thomas E. Madden, Office of Ohio Attorney General, Columbus, OH, for Defendant.

OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court for consideration of a motion for a stay of execution, a temporary restraining order, and a preliminary injunction filed by Plaintiff Brett Hartman (ECF No. 130) and a memorandum in opposition filed by Defendants (ECF No. 133). The motion presents the question of whether this Court believes that Ohio will not fulfill its duties under the Constitution so that the Court should stop the scheduled November 13, 2012 execution of Hartman. The answer to this question turns on the burden involved. Hartman has the burden of convincing this Court that Ohio cannot be trusted in light of new facts presented to the Court. Because he has failed to meet that burden, Ohio can proceed to fulfill its lawful duty to execute Hartman.

I. Background¹

This litigation is a 42 U.S.C. § 1983 civil rights action brought by multiple inmates who challenge various facets of the execution protocol used by the State of Ohio. Most recently, various plaintiffs have sought to obtain stays of their execution dates based on claims that Ohio's execution protocol and practices violate the Equal Protection Clause of the United States Constitution.²

Such claims have not been without foundation. Ohio has time and again failed to follow through on its own execution protocol. The protocol is constitutional as written and executions are lawful, but the problem has been Ohio's repeated inability to do what it says it will do. As a result, this Court has dealt with inmate challenges to the constitutionality of Ohio's execution protocol for close to eight years.³ During that time, the litigation has morphed from focusing primarily on allegations of cruel and unusual punishment to allegations of equal protection violations. And as this Court has stated more than once, “Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms.” In re Ohio Execution Protocol Litig. (Lorraine), 840 F.Supp.2d 1044, 1046 (S.D.Ohio 2012).

One result of this cycle has been continual consideration of requests to stay executions. Such review has been mandated by the Sixth Circuit, which in reviewing a stay of execution issued by this Court, stated that the court of appeals

agree[s] with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted.... [W]hether slight or significant deviations from the protocol occur, the State's ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.

In re Ohio Execution Protocol Litig. (Lorraine), 671 F.3d 601, 602 (6th Cir.2012). Guided by this directive—which the Sixth Circuit expressly based on this Court's July 8, 2011 Smith Opinion and Order and its January 11, 2012 Lorraine Opinion and Order, and which the Supreme Court of the United States declined to vacate in Kasich v. Lorraine, ––– U.S. ––––, 132 S.Ct. 1306, 181 L.Ed.2d 1034 (2012)—this Court approached subsequent stay requests cognizant that the fundamental issue is deceptively simple: once again, can Ohio be trusted?

At times, this Court has unfortunately had to answer that question in the negative. For example, the Court issued a stay in a July 8, 2011 decision in which it set forth at length numerous deviations by state actors from the state execution protocol then in effect, including core deviations that subverted the key constitutional principles that control the execution process. Cooey (Smith) v. Kasich, 801 F.Supp.2d 623 (S.D.Ohio July 8, 2011). This Court enjoined Ohio and any person acting on its behalf from implementing an order for the execution of Plaintiff Kenneth Smith until further Order from the Court.

In response, Defendants revised Ohio's execution protocol and practices. This resulted in the current iteration of the state's execution protocol, 01–COM–11, which became effective on September 18, 2011. Ohio then proceeded to pursue the resumption of executions.

The next inmate seeking a stay via injunctive relief to come before this Court was Reginald Brooks. Brooks' stay motion came on for a hearing from October 31, 2011 through November 2, 2011. The Court took the motion under advisement and, after examining the new protocol and the proffered evidence of Defendants' practices in implementing that protocol, issued a November 4, 2011 Opinion and Order that explained that “[t]he dispositive questions ... have been whether [Brooks] is correct that Defendants routinely deviate from mandated or core provisions set forth in the written protocol and whether [Brooks] has sufficiently proved that the protocol fails to address sufficiently varied constitutional concerns. The answer to both questions is no.” Cooey (Brooks) v. Kasich, Nos. 2:04–cv–1156, 2:09–cv–242, 2:09–cv–823, 2:10–cv–27, 2011 WL 5326141, at *12 (S.D.Ohio Nov. 4, 2011).

Notably, the crux of the rationale behind the Brooks decision is that he failed to present evidence that he was likely to prove that Defendants are not doing what they say they are doing in conducting executions under the current protocol. Of significance is that, unlike in the Smith proceedings, Defendants were now saying that they got the message that their actions must match their words. Trust us, Defendants said, we will not deviate from the core components of the protocol. This Court accepted that contention. Trust us, Defendants continued, we will let only the Director decide whether to allow any potentially permissible deviation from the non-core components of the protocol.

This Court also accepted that statement. Unfortunately, Defendants once again fooled the Court.

On January 11, 2012, this Court issued an Opinion and Order granting Plaintiff Charles Lorraine's motion for a temporary restraining order staying his execution scheduled for January 18, 2012. In re Ohio Execution Protocol Litig. (Lorraine), 840 F.Supp.2d 1044. The Court identified three provisions of Ohio's execution policy from which the state had deviated during the November 15, 2011 execution of Brooks and emphasized that those deviations were constitutionally impermissible because they “were not approved in the only manner in which they could have been approved.” Id. at 1053. This Court explained that “the Director and only the Director can approve non-core protocol deviations,” which constitutes the fifth core component of the protocol. Id. The Court proceeded to criticize the state because it did not appear from evidence presented during the Lorraine injunctive relief hearing that any of the three Brooks deviations had been presented to Director Mohr or that the state at any point thereafter had recognized or corrected course. Such deviation from the fifth core component of the protocol problematically suggested that the remaining four core components were open to similar disregard. Id. (“It is thus not the individual non-core deviations themselves or in the aggregate that lead to this Court's rejection of substantial compliance. Rather, what is significant is the overarching core concern implicated that makes the non-core deviations errors as opposed to approved departures.”). Although the Court issued what can be fairly characterized as a stinging rebuke of Ohio's continued failure to follow its own protocol, the Court made clear once again that it had no interest in micro-managing Ohio's executions. Id. at 1058.

The next plaintiff to seek a stay was Mark Wiles, an inmate who was set to be executed on April 18, 2012. During a March 2012 hearing, the following witnesses testified: Team Member # 23, Team Member # 17, Ohio Department of Rehabilitation and Correction (“ODRC”) Planning Section Chief Ron Erdos, Southern Ohio Correctional Facility (“SOCF”) Health Care Administrator Roseanna Clagg, Chillicothe Correctional Institution (“CCI”) Health Care Administrator Beth Ann Higginbotham, CCI attending physician Dr. Gary Krisher, SOCF Deputy Warden of Operations Michel Oppy, Pharmacological expert Dr. Mark Dershwitz, SOCF Deputy Warden of Special Services Anthony Cadogan, CCI Warden Norman Robinson, ODRC Deputy Planning Section Chief James Goodman, ODRC Director Gary Mohr, Team Member # 10, and SOCF Warden Donald Morgan.⁴ Wiles and Defendants each presented approximately one-hundred...