Second Execution Day for Ohio Killer Approved

COLUMBUS, Ohio (CN) - Seven years after Ohio botched the lethal injection of a convicted murderer, the state Supreme Court ruled has approved a second execution attempt.

Romell Broom was found guilty in 1985 of aggravated murder with kidnapping and rape specifications in connection with the death of 14-year-old Tryna Middleton.

After exhausting his appeal and postconviction proceedings, Broom was ordered to be executed on Sept. 15, 2009.

The execution team attempted on that day for a total of 80 to 85 minutes to establish an IV line, but each vein they stuck proved unusable. The ordeal had Broom screaming and crying in pain, and at one point someone from the medical team even hit bone.

Broom was punctured at least 18 times over two sessions all over his body before officials halted the execution for the day.

Though Broom filed several complaints in court to forestall a second execution attempt, none has proved successful. Broom filed the petition at issue now in 2010, claiming that a second attempt to execute him would violate his Fifth and Eighth Amendment rights against double jeopardy and cruel and unusual punishment, respectively.

When the Cuyahoga County Court of Common Pleas dismissed the petition in 2011, it found the Fifth Amendment inapplicable and said the failed execution attempt was "unpleasant" but not so torturous as to violate Broom's Eighth Amendment rights.

An intermediate appeals court affirmed, and the Ohio Supreme Court split 4-3 Wednesday on its decision that a second execution attempt would not violate Broom's constitutional rights.

"The establishment of viable IV lines is a necessary preliminary step, but it does not, by itself, place the prisoner at risk of death," Justice Judith Ann Lanzinger wrote for the majority. "As the statute makes clear, the execution commences when the lethal drug enters the IV line."

Lanzinger also agreed with the trial court that Broom's first trip to the execution chamber was not torturous.

"The state's intention in carrying out the execution is not to cause unnecessary physical pain or psychological harm, and the pain and emotional trauma Broom already experienced do not equate with the type of torture prohibited by the Eighth Amendment," she wrote.

In one of two dissents the ruling inspired, Justice Judith French called the majority "wrong on the law, wrong on the facts, and inconsistent in its reasoning."

Saying Broom deserves an evidentiary hearing on his Eighth Amendment claim, French called it "disingenuous to dismiss Broom's petition on the grounds that it is 'unclear' why the execution team was unable to establish IV access."

"The majority opinion cites no evidence in the record for an alternative explanation of the state's failure, nor could it, given that the state failed to submit any evidence," Broom said, joined by Justice Paul Pfeifer. "And if the majority truly believes that the cause is unclear, that is all the more reason to have an evidentiary hearing to resolve the question."

French also bemoaned the lack of evidence "that the state has improved the training of its execution team members or increased the certification requirements to perform these tasks."

"If the state cannot explain why the Broom execution went wrong, then the state cannot guarantee that the outcome will be different next time,"

Justice William M. O'Neill wrote in a separate dissent that "the majority's description of the state's first attempt to put Broom to death chills me to the core."

"It is not only the rights of the defendant that are in play here," O'Neill added. "There are state employees who have tragically endured the personal trauma of unsuccessfully attempting to execute a fellow human being. And now we, as a society, are telling them, 'Do it again.'"

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