Lorain County judge to decide legality of lethal injection process

Posted by Reginald Fields rfields@plaind.com

November 01, 2007 03:32AM
Categories: Ohio Supreme Court

Columbus - A Lorain County judge, once the attorney for a death row inmate, can decide whether Ohio's lethal injection process is legal before starting a man's murder trial, the Ohio Supreme Court has ruled.

Never has an Ohio trial judge agreed to consider the constitutionality of lethal injection before a capital punishment trial has even started.

But that is exactly what Common Pleas Judge James Burge did, drawing the wrath of the state attorney general, who said that Burge - in his first year on the bench - was far overstepping his authority.

Attorney General Marc Dann told the Supreme Court in written filings that Burge was taking on a role reserved for federal court judges. The Supreme Court, however, disagreed without further comment in a 5-2 opinion on Wednesday.

The ruling means the Ohio Department of Rehabilitation and Correction will have to comply with Burge's request to reveal in detail one of the prison system's most protected secrets: exactly how it goes about executing an inmate.

"For all I know, they pluck three prison officials out of Lucasville and say, 'Hey guys, you are doing the killing next week,'¤" said Jeffrey Gamso, an attorney for the Ohio American Civil Liberties Union and for Ruben Rivera, the murder defendant challenging the lethal injection process in a case before Burge.

"The state is in the business of killing people, they say it is fine and done humanely and proper," Gamso said. "Then they shouldn't be afraid to show us what they are doing." While Rivera's attorneys requested the hearing, Burge ordered the corrections department to turn over its execution procedures to be used as evidence.

The state was quiet Wednesday after the high court ruling.
The corrections department, which sued to try to stop Burge, would not comment and referred calls to the attorney general's office. An attorney general spokesman would not say when or if it would advise corrections to turn over the lethal injection information.

"I can't discuss where we are on that," said spokesman Leo Jennings. "I can only say we are discussing it with the client."

This ruling adds to an already intriguing debate over lethal injection in Ohio and elsewhere. Inmates in more than a dozen states, including Ohio, have challenged the process on grounds that it violates their Eighth Amendment rights against cruel and unusual punishment.

The U.S. Supreme Court last month agreed to hear a Kentucky lethal injection case that could, once and for all, end the debate. Meanwhile, at least five states have officially halted executions until the U.S. Supreme Court hears and issues an opinion in the Kentucky case.

Furthermore, the U.S. Supreme Court has given every indication that it plans to stop executions everywhere until it has spoken. Late Tuesday, the justices stopped a Mississippi execution 15 minutes before it was to occur, the third stoppage by the court since agreeing to hear the Kentucky case.
Burge was elected to the Lorain County court last November. Before that, he spent three decades as a defense lawyer and represented James Filiaggi, who was executed in April for the 1994 fatal shooting of his ex-wife.

Burge said he is "equivocal" about the death penalty and agreed to a hearing for Rivera because Rivera's attorneys asked for it. Since then, another Lorain County murder defendant, Ronald McCloud, has been granted a similar hearing by Burge.

Burge appointed Gamso to be special counsel to assist Rivera and McCloud in the constitutionality hearings.

"I don't know that prior to this that any other judge has had a defense attorney file this type of motion," Burge said. "It's nothing special about me."

Once prison officials turn over the lethal injection procedures, Burge said he would share the information with prosecutors and defense attorneys, hold a hearing and make a decision.

Burge said he is likely to apply Ohio's lethal injection constitutional standard, which requires the process to be quick and painless, rather than the U.S. Constitution's Eighth Amendment. "If I find it is not painless, then I would dismiss the [death penalty] specifications and the case will go forward as a non-capital punishment case," Burge said. "And the state surely would appeal."

Burge's decision will likely only matter to Rivera and McCloud and not become the rule of the state.

But should he rule the lethal injection process unconstitutional and the state appeals, the question of the legality of the state's execution procedures could wind up coming back to the Ohio Supreme Court.