What’s On Their Minds: 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.

“Are you arguing that the Constitution requires a quick and painless death in and of itself?” Justice Lanzinger, to defense counsel.

“What is the assurance [the state] is going to follow a revised protocol? When reading what occurred here start to finish it’s pretty disturbing. Very disturbing to find out that was the competence level that was in the room to execute a man. What is the assurance that can be offered that the same incompetence will not prevail?” Chief Justice O’Connor, to the prosecutor.

“Are you telling me we have no back up plan at all other than to call the entire procedure off?” Justice O’Neill, to the prosecutor.

On June 9, 2015, the Supreme Court of Ohio heard 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.

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 a total of about twenty 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.

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.

Read the oral argument preview of this case here.

Key Precedent

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. )

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.”)

At Oral Argument

Arguing Counsel

S. Adele Shank, Law Office of S. Adele Shank, Columbus, for Appellant Romell Broom

Christopher Schroeder, Assistant Prosecuting Attorney, Cuyahoga County, for Appellee State of Ohio

Broom’s Argument

Broom made two arguments—one that a second attempt at execution would constitute double jeopardy, the other that a second attempt at execution constitutes cruel and unusual punishment in violation of the Eighth Amendment, and Ohio’s constitutional analogue.

Double Jeopardy Argument

This attempted execution failed through no fault of Broom’s. It went awry because of the state’s failure to comply with binding administrative law and Ohio’s execution protocol.

Just as in a trial, when what is called off—here the execution—is because of the state’s interest, jeopardy has attached and is terminated. Because jeopardy attaches in many instances where the state can go back and try again, the determining factor is how and who terminates, and when it is the state due to its own failure to follow a protocol, then jeopardy has terminated, and cannot be re-imposed. In this case this first prick may be when jeopardy attached, but the termination of the execution attempt by the state for its own interest means it cannot be re-imposed. It doesn’t matter why the state terminated it. As long as the termination is for the state’s interest, it is over.

Cruel and Unusual Punishment Argument

A second attempt at execution would constitute cruel and unusual punishment. Even though no lethal drugs actually flowed into Broom’s body, under the law of attempt, it is not necessary that harm actually be inflicted, or even that any touching has occurred. No bright line rule is needed here. Each case needs to be individually examined, circumstance by circumstance. Nineteen or twenty needle sticks to establish the IV was not the level of humanity Ohio’s General Assembly intended. The legislature did not intend for execution to be a cruel and lingering process.

This attempted execution violated Ohio’s then existing death protocol in a number of respects. That protocol requires three vein checks in the 24 hours before execution. The first one was done and a problem was found. There was no comment about the second one. The third one, on the morning of execution, was not done. In light of the fact there had been a problem the day before, the failure to perform this third required vein check was critical. This alone should preclude a second attempt.

In the event of a failed execution attempt, the state must have a back up plan to carry out execution without venous access. It did not. While the U.S. Supreme Court has not required such a back-up plan, it has said that that there are constitutional ramifications if there were a series of aborted execution attempts—at some point there must be a stopping point.

In this case, the state terminated the attempted execution solely for the benefit of its own staff. The only break Broom got was lying on a gurney in a room just with the people who were there for the specific purpose of killing him. Whether the state intended to cause harm really shouldn’t matter. The only thing that matters is the state had a duty which it breached, and that should be determinative.

Whether or not the state comes up with a new protocol, putting Broom through another execution attempt regardless of the character of it would be a cruel and unusual punishment. A second attempt, regardless of whether the first one violated double jeopardy, and regardless of whether the first attempt violated the Eighth Amendment, would be unconstitutional. The evolving standard of decency requires such a finding.

State’s Argument

What happened in this case is that the state voluntarily called off Broom’s execution before any lethal drugs were ever administered. When it became obvious that a suitable vein could not be maintained, the execution was called off. The state does not dispute the finding that it failed to follow the then-existing protocol. But what happened does not make another execution attempt cruel or unusual. In the ongoing federal litigation about Ohio’s death protocol, Judge Frost determined that deviations from the protocol do not constitute Eighth Amendment violations.

The only real precedent in this area is the Resweber case, which requires a finding of purposeful intent to inflict pain to prove cruel and usual punishment in this context. There clearly was no such thing in this case. There is abundant evidence in the record that the state did everything it could to avoid unnecessary pain in this case.  The court of appeals adopted a lesser standard than Resweber requires-that of deliberate indifference—but Broom cannot meet that either. There is no need for a hearing on this point.

Since this happened in 2009, Ohio has executed twenty-one inmates, and in none of those cases was there documented evidence of problems finding and maintaining a vein; in none were there deviations from the protocol sufficient to amount to an Eighth Amendment violation, and in none of those cases did the state fail to execute someone or cause any pain in the administration of the lethal drugs. That is the assurance the state can offer the court about any next attempt in Broom’s case. Broom wants this court to carve out an entirely new class of persons who are exempt from the death penalty, namely those who had a prior failed IV attempt, and that class happens to be limited to him. He would have a much stronger case if any of the drugs had entered his veins, but that did not happen. The difference between attempting to start an IV and actually administering a lethal drug to that person is paramount.

There is no constitutional requirement for any back up plan in the event of a failed execution attempt. In Ohio, now, the back up is that the warden has the discretion to call off the execution any time a suitable vein cannot be accessed and maintained.

If a defendant is not challenging the punishment itself, the defendant is required to show some subjective state of mind on the part of the execution team. The standard Broom should be required to meet is that set forth in Resweber­, which is proof of purposeful infliction of unnecessary pain. That is what the trial court required. The appeals court set a lower bar, proof of deliberate indifference, which is essentially a recklessness standard. This disagreement does not really matter because Broom cannot meet either standard.

Finally, proportionality is a factor in determining whether punishment is cruel and unusual, and it clearly wasn’t in this instance. In this case the court should impose Broom’s lawful death sentence.

What Was on Their Minds

A lot. This was a very long argument, well and passionately delivered by both counsel.

Ohio’s Execution Protocol

Is there a death penalty protocol from the Ohio Department of Rehabilitation and Correction (ODRC) asked Justice O’Donnell? (answer: yes) Was this carried out in conformity with that protocol? (The state conceded there were “inadvertent” violations of the protocol.) O’Donnell asked defense counsel how the failure to follow the protocol equated to cruel and usual punishment.

Hasn’t this been changed because of a change in the drugs available, asked Chief Justice O’Connor? Some discussion ensued about the ongoing federal litigation before U.S. District Court Judge Greg Frost on Ohio’s execution protocol. You can read more about that here. The Chief went on, commenting that at one time Judge Frost had halted all executions, but has since allowed them to go forward.

The state failed to do the required three vein check, did it not, asked Justice O’Neill?

The Ghoulish Details

Were any drugs placed in Broom’s body, asked Justice O’Donnell in a series of questions about the grim details of executing someone. Was the port inserted? Were the drugs inserted into the port? (answer: no)

What caused this failure to happen, asked Chief Justice O’Connor?

What Happens if there is a Next Time?

If there is another execution attempt, what is the proper action for the state to take, asked Justice O’Donnell? If there is no ability to find a vein the next time, what should the state do? (when defense counsel talked about the need for a back-up plan, O’Donnell pressed her very hard on her authority for that, commenting, “so this is just your notion of what the state should do.”) Later, he asked what case law from other states there was on this point.

If Broom were to go through preparation and execution again, what protocol would be followed, asked Justice French? (She also asked several questions about intramuscular injection, which the state later stated was not in the protocol now.) What confidence does the court have that if the state were to attempt to execute Broom again that the same thing won’t happen?

What had the state done for the subsequent executions that have occurred that was different from the approach they took with Broom, asked Chief Justice O’Connor? What is going to be done with an inmate like Broom who apparently has bad veins?

What today in Ohio is the back-up plan, asked Justice O’Neill? (answer: warden’s discretion to call it off.)

When this happened, did the warden have the discretion to call the execution off, asked Justice Lanzinger? Has the warden had to intervene in any of the twenty-one (!) executions since? (answer: no)

Cruel and Unusual

Does the Constitution requires a quick and painless death in and of itself, asked Justice Lanzinger?

Is the court being asked to write a bright line rule that one needle stick is all that is allowed? Or ten, or twenty, asked Justice O’Neill? (who reminded everyone he is a registered nurse).

Is there any evidence of purposeful infliction of pain in this record, asked Justice O’Donnell? Is that what would contribute to a constitutional violation? Would it have made any difference if a lethal drug had entered Broom’s body? Is this a significant distinction? Does any breach of duty by the state amount to cruel and unusual punishment?

If the court were to say that jeopardy did not attach, because it was merely a preparatory method that was taking place and the means had not yet been implemented , the flow of the drugs had not occurred, because that was an impossibility, will the defense still argue that because Broom has the psychological damage of having to look forward to an execution date that is cruel and unusual, asked Chief Justice O’Connor? (short answer: yes)

Are we dealing with an evolving standard of what is cruel and unusual, asked Justice Pfeifer? Is that really what the court was being asked to apply?

Resweber case

What was the time span between the first and second attempts in Resweber asked Justice O’Donnell? (answer: about one year)

Double Jeopardy

In order to find double jeopardy, would the court need to find that the preparation that was done with the insertion of the needles and the catheter was in fact a protocol that was far enough along to be characterized as an attempted execution, asked Chief Justice O’Connor? Is it a debatable point the execution was halted for the benefit of the state? Doesn’t the record suggest that because of Broom’s condition, the halting was done for his benefit? Does the discretion of the warden to call the execution off automatically trigger double jeopardy?

In Ohio, does jeopardy attach once there is a single attempt at an insertion of an angio-catheter, asked Justice O’Neill?

Attempted Execution or Mere Preparation?

Which was this, asked Justice Lanzinger?

On the record before us, the state tried for 45 minutes, took a break and started again. Is that a new attempt, asked Justice O’Neill?

Did the state attempt to execute Broom or not, asked Justice O’Donnell? As a result of no drugs entering his body, was there an execution or not? (no, said the prosecutor.)

When defense counsel, in rebuttal, referred to what happened as a “series of aborted attempts,” Chief Justice O’Connor took umbrage at that, (as she later did even more forcefully when defense counsel tried to analogize Broom’s psychological trauma to a returning soldier’s PTSD), commenting that there was not a series of attempts, just one.

Broom’s Own Role

There was a lenghty discussion and questioning, mostly by the Chief and by Justice O’Neill about whether Broom had intentionally swallowed an entire box of antihistamines in order to dehydrate himself, and to make the execution difficult or impossible. Ultimately this went nowhere. Early on, Justice Pfeifer asked what difference this made, but defense counsel insisted it did, on the issue of double jeopardy, since jeopardy would only terminate here if the execution were called off to serve the state’s interest, which she insisted was the case.  Justice O’Neill seemed to think this was a factual dispute that would justify a hearing.

Need for a Hearing

Is there a need for a hearing to determine whether or not there was deliberate indifference here, asked Justice O’Neill?

Legal Standard

What legal standard should the court apply here, asked Justice O’Donnell? That of Resweber or something else? The prosecution argued for the Resweber standard of purposeful infliction of unnecessary pain; defense counsel argued for a simple breach of duty (negligence standard, to my trained torts ears).

Justice Pfeifer asked the prosecutor if he thought the trial court, rather than the appeals court had used the correct standard, that of purposeful infliction of unnecessary pain (answer: yes, but Broom cannot even meet the lesser standard of deliberate indifference).

How it Looks From the Bleachers

To Professor Bettman

Like a win for the state, but not in any praiseworthy way. That’s probably putting it mildly. I think the court, while ultimately rejecting Broom’s claim, is going to be highly critical of the state. I found this argument positively chilling. I think everyone should have to listen to this “tinkering with the machinery of death,” as U.S. Supreme Court Justice Harry Blackmun put it years ago, as part of the ongoing national debate about whether we as a society should keep the death penalty. Nebraska has most recently joined the list of states banning it. Wither Ohio?

At times the argument seemed surreal to me. It’s clear that the justices—and the questioning was dominated by the Chief, and Justices O’Donnell and O’Neill—were horrified about what happened here. And of course, the state has been tussling over the “Execution Protocol” with U.S. District Court Judge Greg Frost for years and years, which is why “back up” plans and appropriate protocols come and go. Still, I think the majority view is going to be that because no drugs actually made it into Broom’s body, a second attempt at executing him does not constitute cruel and unusual punishment. And for the same reason, I don’t think the court is going to find that a second attempt is precluded by double jeopardy, despite the fact that Broom’s counsel spent a lot of time arguing that it did. The prosecutor spent no time at all on that argument, wisely, since it appeared to fall on deaf ears.

I don’t know the legal significance of the term “unusual” in the cruel and unusual death penalty jurisprudence, but if it has any literal meaning, I think defense counsel might have chosen to develop that line of argument.

Finally, although defense counsel made passing nods to the Ohio Constitution’s ban on cruel and unusual punishment, she never really developed any basis for why there should be greater protection under the state constitution here. As the U.S. Supreme Court has said before with the new judicial federalism, just saying there is greater protection under the state constitution doesn’t make it so.

Justice O’Neill is clearly going to dissent. He’s already spoken on this issue—when he first joined the court, he announced in his dissent from the order of execution in State v. Wogenstahl that he opposed the death penalty, and has voted against every order of execution since. In fact, he wrote this in his dissent in the Wogenstahl case in January 2103:

“Additionally, death, even by lethal injection, is a cruel punishment. One need only look at the recent Ohio case of Romell Broom for a demonstration of that proposition. Cooey v. Kasich, 801 F.Supp.2d 623 (S.D.Ohio 2011). Although the executioners spent over two hours attempting to find a vein through which to administer the lethal injection, they ultimately failed. Subsequently, the governor granted a one-week reprieve. Broom remains on death row today. A more chilling definition of cruel is hard to imagine.”

In this case, O’Neill might take the position that Broom is entitled to a hearing, due to factual disputes he suggested at argument.

Justice Pfeifer, who has also long made his opposition to the death penalty known, but has not adopted a per se opposition stance in the death penalty cases, looked like the entire argument was making him slightly ill, and said very little. As the strongest advocate for the new judicial federalism, he could well have been persuaded that there is greater protection against cruel and usual punishment under the Ohio Constitution had that argument been fully developed. It would also give Justice O’Neill a better place to hang his anti-death penalty hat. Pfeifer may well go for the defense here on an evolving standard of decency ground.

To Student Contributor Cameron Downer

After a very interesting oral argument with diverse questions, it looks like a win for the State. To me, the questioning by the justices demonstrated an overall hesitance to accept Broom’s argument that the multiple needle pricks, without any contact with a lethal drug, rose to cruel and unusual punishment or was sufficient for double jeopardy to attach.

At argument, the justices questioned whether the failed execution could have been Broom’s fault. Chief Justice O’Connor and Justice O’Donnell asked both defense counsel and the State about the allegations that Broom had consumed a box of antihistamines to purposefully dehydrate himself before the execution. Similarly, Justice O’Neill asked whether an evidentiary hearing should be held to determine these currently unknown facts.

In regard to the “death protocol,” Justice O’Donnell questioned whether the failure to follow the protocol undermines Broom’s double jeopardy argument. Justice O’Donnell, O’Neill, Lanzinger, Pfeifer, French and the Chief each asked a question relating to what type of “backup plan” has been or should be implemented to prevent this situation from reoccurring. Notably, Justice Pfeifer remarked how he thought death should be unpleasant and whether Ohio could use an electric chair as a backup plan. Chief Justice O’Connor inquired about the changes made to the protocol since U.S. District Court Judge Frost’s moratorium on executions and if the needed corrections have been made.

Justice O’Donnell asked how the absence of drugs entering the veins affects the Resweber purposeful infliction of pain analysis and whether the court of appeals’ deliberate indifference standard was appropriate. Justice Lanzinger asked whether the “quick and painless” language of R.C. 2949.22(A) even applies to Broom considering no lethal drugs entered Broom’s body.

Although it is undisputed that the State broke the death protocol, I predict a win for the state with Justice O’Neill dissenting.




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