December 21, 2014

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Appeals court denies lethal injection suit

Terry Kinney
The Associated Press
CINCINNATI — A group of death row inmates on Friday lost another attempt to challenge Ohio’s use of lethal injection when a federal appeals court declined to hear a case that has effectively placed their executions on hold.
The full 6th U.S. Circuit Court of Appeals let stand, without comment, an earlier ruling by a three-judge panel of the court that said an appeal by one of the inmates was filed too late.
The lawsuit was filed in 2004 by Richard Cooey, who was sentenced to die for raping and killing two University of Akron students in 1986. The lawsuit, which was later joined by several other inmates, did not seek to reverse Cooey’s conviction or sentence but argued the state’s use of lethal injection is inhumane.
The Ohio Public Defender’s office, which represents Cooey, said it will now seek an appeal to the U.S. Supreme Court.
“We believe these issues are strong enough to merit the U.S. Supreme Court’s time and attention,” said Greg Meyers, the chief counsel to the Ohio Public Defender.
If the U.S. Supreme Court allowed a challenge to the statute of limitations in filing appeals, it would open the door to an evidentiary hearing on the merits of the inmates’ claim that Ohio’s method of lethal injection is cruel and unusual punishment that amounts to torture.
“I am pleased with the 6th Circuit Court’s decision today denying Cooey’s request that the full court reconsider the panel’s decision,” Ohio Attorney General Marc Dann said in a statement. “The decision and all pending litigation are under review.”
Ohio uses a three-drug cocktail: sodium pentothal, which is 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.
Meyers said he was not sure how many inmates would be affected if the 6th Circuit’s latest decision stands.
In March, a three-judge panel of the court ordered a federal judge in Columbus to dismiss the complaint, saying the judge used an improper test for establishing the starting date for the two-year time limit on challenges.
The panel set the date at the exhaustion of Cooey’s state appeals, the last of which came in 1995. Meyers has argued that the statute of limitations starts when federal appeals are complete.
Six judges on the 6th Circuit, many of whom oppose any implementation of the death penalty, took an unusual step Friday and criticized the majority’s decision not to review the case, which they said will result in simultaneous and contradictory proceedings in state and federal court.
Also Friday, a federal judge in Columbus delayed the upcoming execution of an inmate who was allowed to join the injection lawsuit earlier this year.
U.S. District Court Judge Gregory Frost granted Clarence Carter’s request to delay his July 10 execution while the lawsuit works it way through the courts.
Frost’s decision did not take into account Friday’s full 6th Circuit ruling, which was issued almost simultaneously.
Frost said he recognized that the previous 6th Circuit ruling in March could affect his decision regarding Carter and other prisoners suing over injection. But he said until that issue is settled, he believes Carter had the ability to join the lawsuit and ask for a delay.

lawsuit over lethal injection
THE ISSUE: Richard Cooey, who was sentenced to die for raping and killing two University of Akron students – one of whom was from North Ridgeville — in 1986, filed a lawsuit in 2004 challenging Ohio’s use of lethal injection, saying it is cruel and unusual punishment that amounts to torture. Other inmates have joined the lawsuit, effectively delaying their executions.
THE COURTS: A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati ruled in March that Cooey’s appeal was filed too late. The full court on Friday let the decision stand without comment.
THE NEXT STEP: Cooey’s attorney said he will file an appeal to the U.S. Supreme Court.