Another opinion in the year of the needle

December 21, 2006

another opinion in the year of the needle

One of the great truly positive things that happened in 2006 was Scott Taylor’s launch of the blog Ohio Death Penalty Information. Today ODPI reports, U.S. District Court Judge Gregory Frost granted a stay of Kenneth Biros’s January 23rd execution because of the litigation and questions surrounding questions Ohio’s lethal injection protocol. The opinion is here.

Judge Frost notes that several other Courts have found undue delay as a reason not to grant a preliminary injection. Biros moved to intervene in the lethal injection litigation on October 18, 2006. On November 30, 2006 the Ohio Supreme Court set an execution date. Finding that Biros should be granted the district court seemingly gives dispositive weight to the fact Biros moved to intervene in the Ohio lethal injection litigation prior to the setting of an execution date.

Two interesting tidbits should also be noted.

First, as if to affirm the cascading theory of the lethal injection related stays (that is the Kentucky opinion in Baze in November botch of Angel Diaz in Florida helped provided cover for Judge Fogel’s decision in Morales which in turn provided cover for the Maryland Court of Appeals in Evans v. State)there is footnote 5: “The Court takes judicial notice that multiples states have recently placed executions on hold due to serious concerns over their lethal injection protocols.”

Second, Judge Frost doesn’t let the Sixth Circuit off the hook for its conflicting panel decisions:

Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is. Because neither order provides any reasoning for its outcome, this Court can only conclude that the law of the case is that this Court should evaluate individually and on a case-by-case basis each motion for a preliminary injunction that comes before it. In other words, there is apparently no substantive law of the case as to all intervening plaintiffs here because there is no apparent consistency to the appellate decisions that have arisen from this litigation.

Kenneth Biros January 23 execution date is still being considered serious for now.