COLUMBUS, Ohio — The Ohio attorney general's office was preparing its appeal to the U.S. Supreme Court on Tuesday to defend its lethal injection procedures against a federal court decision that halted an execution planned for this week.
The appeal to the high court is a priority, but attorneys were working as thoughtfully as possible and the timetable for filing wasn't known, said Lisa Peterson Hackley, a spokeswoman for Attorney General Mike DeWine.
Wednesday's planned execution of Charles Lorraine, 45, was halted last week by U.S. District Court Judge Gregory Frost, who said Ohio's corrections department had once again failed to follow its own rules for executions. The 6th U.S. Circuit Court of Appeals agreed with the ruling, prompting DeWine and Gov. John Kasich to say they would take the case to the Supreme Court.
Frost said Ohio failed to document the drugs used in its most recent execution in November and failed to review the medical chart of the inmate who was put to death. He called his decision against the state a "self-inflicted wound" that could have been prevented if the corrections department did a better job of explaining why it might deviate from its policies.
"Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms," he said.
A three-judge 6th Circuit panel upheld the delay while the state's changes and reasons for them are reviewed.
The panel said federal courts must monitor every single Ohio execution "because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death."
DeWine has said the postponement ordered by the federal courts was unwarranted and that "Ohio's execution process must comply with constitutional standards, and that should be the test as far as the federal courts are concerned."
Kasich said the state takes its lethal injection responsibilities seriously and will continue to work with Frost to ensure that Ohio's process meets constitutional requirements.
Lorraine's attorneys called on the governor to place a moratorium on executions in the state and said the case isn't about Lorraine's crimes.
"It is about the inability of the State of Ohio to apply its law equally, as the United States Constitution demands, in executing its citizens. That is what four conservative federal judges unanimously found, including two of the judges who had previously reinstated our client's death sentence," they said in a statement.
Frost had also halted an Ohio execution in July, citing "haphazard application" of certain death penalty protocols and calling the situation an embarrassment. The state responded by making various changes, such as requiring post-execution reviews and a physical evaluation of the condemned person's veins three weeks prior to execution. The policy said the new procedures are to be "strictly followed" and the warden or prisons director must be notified of any reasons for deviation, with any variations requiring the director's approval.
Ohio has updated its execution policies a number of times over the past two years. The procedure came under scrutiny in 2009 when executioners tried for nearly two hours to insert a needle into the veins of Romell Broom, sentenced to die for the rape and slaying of a 14-year-old Cleveland girl.
Then-Gov. Ted Strickland eventually called off the execution and the state instituted a new policy that switched the IV injection from three drugs to one and added a backup lethal injection that would go directly into muscle.
Broom remains on death row, arguing in court filings that Ohio shouldn't be allowed a second try at executing him.
Lorraine, of Warren, was sentenced to death for the 1986 slayings of 77-year-old Raymond Montgomery and his bedridden wife, 80-year-old Doris Montgomery, who were stabbed multiple times before their Trumbull County home was burglarized. Kasich had rejected clemency, following the recommendation of the Ohio Parole Board.
Following last week's appellate ruling, Trumbull County Prosecutor Dennis Watkins urged Kasich to ask the attorney general to appeal to the Supreme Court. He described as "ludicrous" the allegation that Ohio can't be trusted to conduct executions humanely and constitutionally.
Frost had said Lorraine's attorneys had provided enough evidence of the significance of the protocols the state failed to follow. Evidence indicates the state violated its policy when the execution team failed to review the medical chart of Reginald Brooks when he arrived for his Nov. 15 execution at the death house in the Southern Ohio Correctional Facility in Lucasville.
Frost said executioners also failed to properly document the name or description, expiration date and lot number of execution drugs used.
Brooks was executed for shooting his three sons as they slept in 1982, shortly after his wife filed for divorce.