September 3, 2014

Elyria
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Hearing could affect death penalty

Judge seeks details about lethal injection for Lorain case

ELYRIA — County Common Pleas Judge James Burge has ordered the state to produce detailed information on how it administers lethal injections to death row inmates for a hearing on whether the process amounts to torturing the condemned to death.
Defense attorneys routinely contest the constitutionality of the death penalty, but attorneys for Ruben Rivera, who could be executed if convicted of aggravated murder in the Aug. 13, 2004, shooting death of Manuel Garcia, have taken the unusual step of challenging the way inmates are executed. Judges regularly reject the many motions filed in connection with death penalty cases, but Burge said Wednesday he’s willing to give Rivera’s objections an extensive review.
Prosecutors, however, argue that Burge would be overstepping his authority if he allows the hearing, set for July 9, to go forward.
Rivera, 37, is accused of forcing his way into Garcia’s Colorado Avenue home in Lorain with two other men, Carlos Ortega and Bruce Chisholm, to steal heroin. Witnesses told police they heard gunshots and saw Garcia stagger outside and collapse. Three men were spotted fleeing the scene in a Honda Civic, which police later identified as belonging to Ortega.
Ortega and Chisholm were caught by police when the car was stopped, but Rivera managed to escape and elude police for two days until his arrest in Cleveland. Both Ortega and Chisholm have been convicted in the case and are serving life sentences.
Quick and painless?
The argument about whether lethal injection guarantees a quick and painless death is similar to a legal battle being waged in federal courts by several Ohio death row inmates who contend the cocktail of drugs used in the process could lead them to suffer greatly as they are executed.
Ohio’s American Civil Liberties Union Legal Director Jeff Gamso, who represents Rivera, said the sedative in the cocktail might not keep the condemned inmate unconscious while other drugs stop his heart and breathing. If the inmate wakes up, he or she would experience the agony of dying but would be unable to move or cry out.
Another of Rivera’s attorneys, Kreig Brusnahan, said the trouble prison officials had carrying out the execution of convicted killer Christopher Newton in May gave further ammunition to their opposition. It took prison officials nearly two hours to execute Newton because they had trouble getting shunts into his arms to allow the drugs to be administered.
“Letting someone linger for hours on a gurney is not my idea of a quick and painless death,” Brusnahan said.
Wrong place,
wrong time
County Prosecutor Dennis Will said Ohio’s death penalty law has been challenged all the way to the U.S. Supreme Court and has been found constitutional. The challenge of the lethal injection process isn’t something that should be addressed by a trial court before someone has been convicted, he said.
“The issues that are being raised are premature,” Will said.
Brian Laliberte, deputy first assistant Ohio attorney general, defended the lethal injection process and said it’s unusual for a trial judge to be considering the constitutionality of the death penalty.
“Our position is steadfast that the manner we conduct executions in Ohio is constitutional,” Laliberte said.
But Brusnahan said the state should be willing to let the public take a closer look at the lethal injection process.
“What possible reason would the state of Ohio have to hide this information, unless they know they’re doing it wrong?” he said.
Where Burge stands
Burge, who took the bench in January, acknowledged that calling for the hearing is unusual, but he said he’s simply complying with the requests of the defense attorneys, who filed the motion.
The material he is requesting from the state is needed so a defense expert can review the execution process to prepare for the hearing.
“The lawyers are telling me that they have to have a complete record, otherwise any ruling I make will be based on incomplete evidence,” he said.
Burge, a former defense attorney who keeps photos of former client James Filiaggi, who was executed in April for the 1994 shooting of his ex-wife, in his office, said he’s personally torn on where he stands on the death penalty. In fact, Burge pushed Filiaggi, whom he described as a friend, to make a last-minute bid to save his life.
But, he said, if a jury recommended the death penalty and the circumstances of the case supported it, he would sentence someone to death.
Will said he has no reason to doubt that Burge will give both sides fair consideration.
Common practice
For those involved in the case, this is the first time they’ve tried to challenge the death penalty based on the method before a defendant was convicted. They said they hadn’t heard of it being done elsewhere in Ohio, either.
There’s a typical packet of briefs that are filed in connection with death penalty cases. This isn’t one of them.
 “They’ve got their canned briefs, we’ve got our canned briefs,” Brusnahan said. “We submit them, and the court does what the court does.”
Will said prosecutors oppose such motions and common pleas judges routinely have denied defense efforts to get the death penalty declared unconstitutional.
If Burge does go forward with the hearing and ultimately finds the lethal injection process is cruel and unusual, it could have far-reaching implications.
Brusnahan said while the review is focused specifically on Ruben Rivera, Burge could expand his ruling to prevent the state from imposing the death penalty in any case. But any decision Burge makes is likely to be quickly appealed, Brusnahan said.
“If the only way to kill people is unconstitutional, the judge can’t order them to be killed,” the ACLU’s Gamso said.
Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.