Ohio death penalty news

The Cincinnati and Miami Valley region was almost a virtual hotbed of capital punishment/ death penalty news & issues these past couple of weeks. Here's an overview updating for anyone who may have missed it.

The Wednesday before Thanksgiving, the U.S. 6th. Circuit Court of Appeals ruled that with the new method of lethal injection the state of Ohio has decided to pursue, Kenneth Biros – along with other death row inmates – can no longer argue that Ohio's three-drug cocktail of lethal drugs violates their constitutional rights. That meant Biros could be executed tomorrow ( Article )( 6th. Circuit's decision ) (District Court's motion )

The ruling, however, didn't prevent attorneys from petitioning the Court for future stays of execution challenging the new, single-drug, method, which was expected by state officials. Instead, Biros' attorneys last Friday contested the 6th. Circuit's 3-justice panel decision and petitioned for a rehearing by the full court, claiming that the State's changing the method of execution did not, in fact, answer their challenge. ( Petition ) The state's Attorney General's response is Here.


Another article indicated death-row inmate – Romell Broom, whose attempted execution back on Sept. 15th. led to the current, unofficial, moratorium in Ohio – petitioned the Ohio Southern District Court to bar a second attempt at executing him. That case will be being heard next week.


Kentucky's Supreme Court on November 25th. found that that state "improperly adopted" its 3-drug lethal injection protocol in spite of the both that court and the U.S. Supreme Court's ruling last year that the procedure -- also used by a majority of the other states employing lethal injection in executions – was constitutional and didn't constitute cruel & unusual punishment. The Kentucky high court in the case – raised in part by two of the party inmates to those first two cases – agreed that the lethal injection protocol should be adopted by the prescribed legislative procedure, by that the fact that it hadn’t been didn't affect the inmates' disposition. ( Article) ( Ruling )( Kentucky’s statute)


Then there was the case of Cecil Johnson, who the State of Tennessee executed last Wednesday morning. The Supreme Court denied Johnson's last-minute appeal out of the 6th. Circuit, with Justices John Paul Stevens and Clarence Thomas' strongly worded opposite positions on whether the lengthy delay since Johnson’s conviction in 1981 in fact constituted cruel & unusual punishment under the Constitution, perhaps drawing more attention than the facts. Law.com's Marcia Coyle summarized it as "Justice John Paul Stevens, joined by Justice Stephen Breyer, dissented in denying certiorari, saying Johnson's situation was 'as compelling a case' as he had encountered raising the constitutional concerns that Stevens himself raised in a 1995 dissent from another denial of certiorari: Lackey v. Texas…. (remaining) steadfast in his view that execution after such delay is unacceptably cruel because it subjects death row inmates to decades of severe, dehumanizing conditions of confinement, also adding that delaying an execution does not further the public purposes of retribution and deterrence. Justice Thomas, in a spirited response, said Johnson spent 29 years challenging his conviction and sentence and 'now contends that the very proceedings he used to contest his sentence should prohibit the state from carrying it out.'"

Lackey's petition in 1995 was denied so as to permit "the state and federal courts to 'serve as laboratories in which the issue receives further study before addressed by the Supreme Court.'"


Lastly, the Ohio Supreme Court Wednesday affirmed the death sentence of a Kerry Perez for aggravated murder committed in 2003. ( Decision )( Court's Summary ) Perez had claimed 13 allegations of error by his trial court, including that it “should not have admitted into evidence tape recordings of conversations between Perez and his wife, Debra, that were made with Debra's consent but without her husband’s knowledge during her visits with him at the Clark County jail. Perez contended that admitting secret recordings of what he believed to be confidential communications with his spouse into evidence violated the marital-communications privilege set forth in R.C. 2945.42 and denied him due process of law."

Justice Cupp noted that courts in some states have interpreted their privilege statutes broadly to bar third-parties from introducing evidence of spousal communications that was obtained from or with the help of a defendant’s collaborating spouse. However, he cited with approval a Michigan Supreme Court decision, People v. Fischer, 442 Mich. 560 (1993), that interpreted statutory language barring a spouse from being “examined” with respect to spousal communications to preclude in-court testimony by a spouse as a sworn witness, but not to preclude introduction of marital communications into evidence through other means.