Federal appeals court hears arguments on lethal injection

Federal appeals court hears arguments on lethal injection
TERRY KINNEY
Associated Press
CINCINNATI - A federal appeals court was asked on Thursday to rule that a death row inmate met the legal deadline when filing a challenge to the way Ohio executes prisoners.

A ruling in favor of inmate Richard Cooey would enable a lower court to hold an evidentiary hearing on Cooey's claim that Ohio's method of lethal injection is cruel and unusual punishment.

The Ohio attorney general's office contends that Cooey did not file his motion within the two-year statute of limitations. Defense attorneys argued that the state has miscalculated when the statute was triggered.

The court took the case under advisement. It often is several months before the court issues a ruling.

A lower court ruled in favor of Cooey, 39, who was sentenced to die for raping and killing two University of Akron students in 1986. Eight Ohio death row inmates have joined the lawsuit, although two have been executed after failing to obtain stays of execution.

Opponents of Ohio's lethal injection method of execution contend that the chemicals used in the three-step process inflict such severe pain that death results, in effect, from torture. It's that issue that Cooey wants to address.

"It's safe to say that virtually any death row inmate is attaching this issue to his appeals. If you don't, you lose the opportunity to ever do it again," said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center. "It may not be the sole subject of their appeal, but I think virtually all death row inmates are raising this issue to preserve it."

Lawsuits over lethal injection have stopped executions in several states. A panel of 6th Circuit judges blocked Tuesday's execution of Jerome Henderson, 47, who was allowed to join Cooey's lawsuit.

Ohio uses a three-drug cocktail: sodium pentothal, a barbiturate; pancuronium bromide, a paralyzing agent; and potassium chloride, which stops the heart.

Opponents say the painkiller can wear off after the paralyzing agent is administered but before the heart-stopping agent is administered, leaving a person in pain but unable to let anybody know.

They also point to the execution in May of Joseph Clark, 57, when the team at the Southern Ohio Correctional Facility could not find a suitable vein in the longtime intravenous drug user's right arm to insert a second shunt.

The execution was delayed nearly 90 minutes, and at one point Clark turned to the staff and said, "It don't work" as the team tried to start the injection.

Officials later said staff had problems finding a viable vein, and one vein that was used collapsed. Since then, Ohio has changed the process to make every effort to find two injection sites and to use a new method to make sure the veins stay open once entryways are inserted.

Lethal injections are used by the federal government and 37 of the 38 states that have the death penalty. Nebraska uses the electric chair.

Groups opposed to capital punishment say legal battles over the injection procedure are being fought in at least 14 states.

"The reason why it's not the same for everyone is there's no uniform rule about the appropriate time when to raise the challenge," said Ty Alper, law professor at Berkeley law school. "So a lot of courts are saying, 'Well, you're too late. There may be some merit to your constitutional challenge, but you're raising it too late.'"

The U.S. Supreme Court in June made it easier for death row inmates to file special appeals under a federal civil rights law after exhausting regular appeals.

Since the court's intervention in a Florida execution in January, executions have been stopped in California, Maryland and Missouri, and North Carolina began using a brain wave monitor in executions to assure a federal judge that inmates would not suffer pain.
http://www.ohio.com/mld/beaconjournal/news/state/16188793.htm