Oral Argument Preview: Does a Botched Execution Attempt Preclude a Second Try? State of Ohio v. Romell Broom.

Update: On March 16, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Broom.  Read the analysis of that decision here.

Read the analysis of the oral argument here.

On June 9, 2015, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Romell Broom, 2012-0852. At issue in this case is whether the Eighth Amendment and Double Jeopardy Clause of the Fifth Amendment bar a second attempt to execute an inmate when the first attempt at lethal injection failed.

Case Background

In 1985, Romell Broom, the appellant, was convicted and sentenced to death for the aggravated murder, rape, kidnapping, and attempted kidnapping of fourteen year old Tryna Middleton.

Broom’s conviction and sentence were upheld on direct appeal. Since then, Broom has had two unsuccessful rounds of post-conviction relief attempts, and two sets of unsuccessful habeas reviews in federal court.  Along the way, he was granted permission to test DNA samples from semen taken from Tryna Middleton’s body. Instead of showing his innocence, the DNA testing found that Broom and the killer share DNA statistics that occur in approximately one of 3.2 million African-Americans.

After Broom’s more than two decades of unsuccessful attempts at relief from the death penalty, the Supreme Court of Ohio set Broom’s execution date for September 15, 2009. On that date, the State unsuccessfully attempted to execute Broom. The execution team failed after approximately two hours to place an IV catheter, pricking Broom numerous times in both arms, his feet, and on his ankles. Due to the failure to place the IV, the execution was postponed by a reprieve issued by the Governor. There was evidence that Ohio’s execution team failed to comply with the execution protocol, had skipped training sessions, inappropriately used non-team members to assist, and skipped an important vein check.

In addition to other federal remedies, Broom filed a post-conviction petition on September 15, 2010, requesting declaratory relief urging the trial court to vacate or set aside his death sentence and to ban the State from ever again trying to execute him. On April 7, 2011, the trial court denied the petition. In a split decision, the Eighth District Court of Appeals affirmed the denial. The majority found that to get the relief requested, Broom needed to prove that the execution team acted with “deliberate indifference.” The court refused to remand the case to give Broom a chance to meet the newly adopted standard. The dissent would have remanded the case to give Broom a chance to prove deliberate indifference.

Key Precedent

Eighth Amendment to the U.S. Constitution & Article 1, Section 9 of the Ohio Constitution (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”)

Fifth Amendment to the U.S. Constitution (“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”)

R.C. 2949.22(A)(“. . . a death sentence shall be executed by causing the application to the purpose, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death.”)

Louisiana ex Rel. Francis v. Resweber, 329 U.S. 459 (1947) (A 4-1-4 plurality opinion that found that the first attempt to execute a man, which failed because the electric chair did not deliver the required voltage, was considered an attempt. The plurality holding is that a second attempt would not be unconstitutional as the defendant did not demonstrate any malevolence or purpose to inflict unnecessary pain on behalf of the state actors. The four dissenters would have held that, depending on how much electricity was delivered, the second attempt would be cruel and unusual. Justice Frankfurter’s concurrence found that the Eighth and Fifth Amendments were not applicable to states, a position that has since been rejected. )

United States v. Halper, 490 U.S. 435 (1989) (The Double Jeopardy Clause protects, inter alia, against multiple punishments for the same offense.)

Baze v. Rees, 553 U.S. 35 (2008)(“Some risk of pain is inherent in any method of execution-no matter how humane-if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out execution.”)

Broom’s Argument

Broom argues that the Constitution bars any additional attempt at another execution. First, Broom argues that the Eighth Amendment bars any further attempt because the State did not follow its own execution protocol or take the reasonable steps that would have prevented the unnecessary pain and suffering inflicted during the first attempt. Any additional attempt under these circumstances would build on the intense physical pain and prolonged psychological torment Broom has already suffered and would constitute constitutionally intolerable cruelty, in violation of the Eighth Amendment. Even though what happened in this case is likely never to happen again, it was clearly not Broom’s fault; the state was solely responsible for what happened. Broom should not be made to suffer for the state’s failure of duty.

Second, the Supreme Court in Resweber provides support for finding that the Eighth Amendment bars a second attempt. The 4-1-4 plurality hinged on Justice Frankfurter’s position, finding the Amendment inapplicable to states, a view that has since been rejected. The court in Resweber found it significant that death by electrocution was almost instantaneous and was not a “death by installments.” In contrast here, Broom had to endure the attempt for approximately two hours and is now faced with another attempt. In light of the change in facts and law, the Resweber court would find that a second attempt would violate the Eighth Amendment. Further, R.C. 2949.22(A) mandates a quick and painless death, and two execution attempts violates that mandate.

Third, the Eighth District erred when it created a new standard requiring Broom to plead and prove that the state actors who attempted to carry out his execution acted with deliberate indifference. There is no case law supporting the new standard and the standard is inappropriate considering the execution team necessarily had to act with indifference because its job was to execute Broom, not ensure his safety. The subjective intent of the executioners, including whether or not they were “deliberately indifferent,” is not a required showing . Further, as noted by the dissenting judge, the appeals court incorrectly and unfairly deprived Broom of an opportunity to comply with the new standard by refusing to remand the case.

Next, Broom makes a new judicial federalism argument, namely that Article I Section 9 of the Ohio Constitution provides greater protection against cruel and unusual punishment than the federal constitution does, and should independently grant him relief in this case. Broom made a similar argument about Ohio’s Double Jeopardy Clause.

Lastly, Broom argues that he is entitled to relief under the Double Jeopardy Clause. Broom has already been punished up to the last moment, the brink of his actual death. Thus he endured prolonged confinement, receipt of a firm execution date, relocation to death row, the enduring torment of what he believed was his last night on earth, eating his last meal, saying painful goodbyes to family and friends, the reading of his death warrant, his complete and abject surrender to the execution team, and two hours of painful needle insertions. Requiring a second execution would double this punishment, and Broom has a reasonable expectation in the “finality” of his death sentence.

State’s Argument

The State argues that the Eighth District decision should be affirmed, and that Broom’s constitutional claims are without merit. First, lethal injection has been repeatedly upheld and the U.S. Supreme Court has recognized that there is a risk of pain inherent in any method of execution. Instead, to violate the Eighth Amendment, the punishment must be something inhumane or barbarous. Repeated pricks with a needle to place an IV does not rise to that standard.

Second, the Eighth District properly adopted the deliberate indifference standard for Broom’s claim in consideration of Resweber. The plurality  in Resweber was particularly concerned about whether the state actors purposefully tried to inflict unnecessary pain. If the state actors did purposefully inflict necessary pain, the Eighth Amendment would be implicated. Conversely, the court recognized that the Constitution does not protect against the necessary suffering involved in any method employed to extinguish life humanely. Therefore, Broom’s unsuccessful execution did not violate the Eighth Amendment because there was no purpose to inflict unnecessary pain.

Third, Broom’s double jeopardy argument is meritless. It cannot be argued that any discomfort or pain that Broom was subjected to on the date of the execution constituted the punishment for the aggravated murder of Tryna Middleton. Instead, the State was merely preparing to carry out the lawfully imposed sentence but the preparation failed and his execution was halted. This type of government action is not what the Double Jeopardy Clause was intended to prevent.

Broom’s Proposed Proposition of Law No. 1

The lower courts erred when they found that the cruel and unusual punishment clauses of the United States and Ohio Constitutions do not bar another attempt to execute Broom.

Broom’s Proposed Proposition of Law No. 2

The lower courts erred when (1) the appellate court 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 and (2) when the trial court denied him discovery and a hearing.

Broom’s Proposed Proposition of Law No. 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 Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

Amicus Brief in Support of Broom

The Office of the Ohio Public Defender suggests that this case gives the court the much needed opportunity to define the scope of Eighth Amendment jurisprudence in Ohio.  The PD’s office argues that the Eighth District should have applied the “evolving standards of decency” test, not deliberate indifference, and determined that the psychological and physical torture Broom was subjected to violated the Eighth Amendment’s prohibition of cruel and unusual punishment and Article I Section 9 of the Ohio Constitution.

Student Contributor: Cameron Downer

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