From the Execution Chamber Back to the Courtroom

Romell Broom's lawyers will return to court tomorrow, just days removed from the botched execution of their client. They will argue that trying to execute Broom a second time would constitute cruel and unusual punishment, in violation of his Eighth Amendment rights, as well as a violation of his 14th Amendment due process rights. Lawyers for the state of Ohio will likely argue that because the three-drug lethal injection cocktail never reached Broom's veins, that a second go-around is just fine.

It's worth taking a look at some pertinent language from the Supreme Court's 2008 ruling in Baze v. Rees, when the Court upheld Kentucky's lethal injection procedure as constitutional. In his plurality opinion, Chief Justice John Roberts hinted at where the Court might say, "Enough is enough":

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of “objectively intolerable risk of harm” that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that “[a]ccidents happen for which no man is to blame,” and concluded that such “an accident, with no suggestion of malevolence,” did not give rise to an Eighth Amendment violation.

As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, “a hypothetical situation” involving “a series of abortive attempts at electrocution” would present a different case. In terms of our present Eighth Amendment analysis, such a situation—unlike an “innocent misadventure”—would demonstrate an “objectively intolerable risk of harm” that officials may not ignore. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm.”

Roberts suggests in Baze that multiple execution attempts may indeed prove too much for the Constitution to bear. Let's see if the lower courts follow that logic. I certainly hope so.

A Re-Execution in Ohio

To legally kill death row inmates, most states use a three-drug lethal injection protocol. One drug is designed to anesthetize the inmate (sodium thiopental), one drug paralyzes him and stops his breathing (pancuronium bromide), and the third drug stops his beating heart (potassium chloride). Executions without an anesthetic drug would be unbelievably painful, and would almost certainly violate the Eighth Amendment's ban on cruel and unusual punishment. Executions would simply fail without the drug that kills. The paralytic drug, however, serves no humane purpose. In fact, quite the opposite: when the anesthetic drug doesn't work, the inmate is paralyzed but feels incredible pain when the death drug arrives. It's a shocking thing our government does, behind closed doors. The ACLU has of course challenged the use of this paralytic drug in federal court, after several botched executions in California, the state with the nation's most populous death row. This legal challenge helped impose California's current 3 1/2-year moratorium on executions. More California death row inmates have committed suicide than have been executed since 1976.

But the paralytic drug isn't the only problem with lethal injection. As many medical personnel know, some people have difficult veins to stick. The same holds true for death row inmates, including Romell Broom of Ohio. In an appalling story that should give us all pause, executioners in the state of Ohio this week gave up on their attempt to execute Broom, a convicted rapist and killer, when they could not find a suitable vein to inject the drugs. Broom, to his credit, squeezed his fist (and sweated bullets) in an attempt to assist his killers.

Broom's lawyers are headed to court. Now Ohio and likely some federal courts will have the sick task of coming up with a rationale for the state to execute Broom a second time, without violating the Eighth Amendment. The state could, of course, simply commute his sentence to life imprisonment without chance of parole, but that would be too simple (and heck, it might encourage other death row inmates to make their own veins difficult to stick). No, the state will undoubtedly argue that executing the same person twice does not constitute cruel and unusual punishment, and the Ohio courts will without question rubber-stamp that logic. But should the case reach the federal courts, Ohio's attorney general may have a tougher time convincing a judge that the state's lethal injection protocol, which failed to execute Broom, is constitutional after all. It's a case worth watching.

UPDATE, 9/19:
A federal judge has stepped into Romell Broom's case, giving him and his lawyers a 10-day reprieve. The temporary restraining order prevents Ohio from executing Broom next week, as the state had planned. Instead, Broom will testify in court Monday about his botched execution. This is fantastic news.

Stay issued for Troy Davis!

The 11th Circuit Court of Appeals on Friday issued a stay of execution for Troy Davis! The stay comes just three days before Davis was scheduled to be executed.

“Upon our thorough review of the record, we conclude that Davis has met the burden for a stay of execution,” the court said in a ruling issued by Judges Joel Dubina, Rosemary Barket and Stanley Marcus.

http://www.ajc.com/metro/content/metro/stories/2008/10/24/troy_davis_stay.html

CNN reports that the stay has been issued for 25 days. The AP reports that a three-judge panel of the 11th Circuit has asked lawyers from both sides to file new briefs, to see if Davis can meet the "stringent requirements" needed for a new round of appeals.

The stay comes a day after worldwide protests (including our humble gathering of 45 in Williamsburg) organized by Amnesty International.

Woohoo!

We are all Troy Davis

We rallied for two hours this afternoon at the intersection of Richmond, Jamestown and Boundary (Confusion Corner) in Williamsburg this afternoon, informing people of Troy Davis's plight. We collected more than 100 signatures, which we will fax to Amnesty International. That organization will gather signatures from around the world and send them to the Georgia Board of Paroles and Pardons, which is the only hope Davis has left for clemency.

If one innocent man dies, a piece of all of us dies with him. We are all Troy Davis.

Standing Firm for Justice

This week some friends and I have helped organize a local protest and rally for Troy Davis, a Georgia death row inmate who's facing execution on Monday, Oct. 27. Here's a summary of Davis's case, from Amnesty International:

Troy Davis was sentenced to death for the murder of Police Officer Mark Allen MacPhail at a Burger King in Savannah, Georgia; a murder he maintains he did not commit. There was no physical evidence against him and the weapon used in the crime was never found. The case against him consisted entirely of witness testimony which contained inconsistencies even at the time of the trial. Since then, all but two of the state's non-police witnesses from the trial have recanted or contradicted their testimony. Many of these witnesses have stated in sworn affidavits that they were pressured or coerced by police into testifying or signing statements against Troy Davis.

One of the two witnesses who has not recanted his testimony is Sylvester "Red" Coles – the principle alternative suspect, according to the defense, against whom there is new evidence implicating him as the gunman. Nine individuals have signed affidavits implicating Sylvester Coles.

To recap — there is no physical evidence implicating Davis; no murder weapon was ever found; seven of the nine witnesses who originally testified against him have recanted; and of the two witnesses left, one was the principle alternative suspect. Moreover, Georgia is notorious for obtaining wrongful convictions in capital cases; there have been six exonerees in the state since the death penalty was reinstated in 1976.

The murder occurred the morning of Aug. 19, 1989, when Sylvester Coles began harassing a homeless man in Savannah, Ga., while Davis and others watched. Officer Mark MacPhail responded to the homeless man's pleas for help, and was shot dead with a .38-caliber pistol. The next day, Coles and his lawyer approached police, hoping to exonerate Coles and implicate Davis in MacPhail's death. Coles and Davis are both black men of virtually identical height and weight. Davis, maintaining his innocence, surrendered to police, in hopes that the justice system would sort out the situation.

It did not. Nineteen years later, Davis — quite possibly, an innocent man — is just a few days from death. The Supreme Court of the United States last week denied Davis's final appeal, despite the recantations of seven witnesseses. As so often happens in capital cases, the wheels of death started turning, and have become virtually impossible to stop. Davis's last hope rests with the Georgia Board of Paroles and Pardons, which could grant him clemency before the execution on Monday.

This is not happening in some Third World country. This is the American South. It is despicable, and an embarrassment to our nation.

Tomorrow from 4–6 p.m. we will rally outside the Wren Building on the undergraduate campus of William & Mary, one of many such protests held throughout the world for Troy Davis. Keep him in your thoughts and prayers.