September 2, 2014

Elyria
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Prosecutor threatens judge with legal action

Lethal injection at issue in shooting trial

ELYRIA — If county Common Pleas Judge James Burge goes ahead with a hearing on whether the state’s lethal injection method passes constitutional muster, he could find himself with a different legal fight on his hands.
Assistant County Prosecutor Tony Cillo told Burge Monday that if the judge decides that he has the power to hold the hearing, he’ll ask the Ohio Supreme Court to halt it.
“I’d probably file a writ of prohibition with the Ohio Supreme Court saying you’d overstepped your bounds,” he said.
If granted, such a writ would prevent Burge from holding the hearing defense attorneys for Ruben Rivera are seeking that could remove the death penalty from consideration if Rivera is ultimately convicted of aggravated murder in the Aug. 13, 2004, shooting death of Manuel Garcia. Prosecutors have argued that the issue shouldn’t even be reviewed by Burge because Rivera hasn’t been convicted and whether the death penalty constitutes cruel and unusual punishment is a matter for the appeals courts, not a trial judge.
Cillo also said that Ohio’s chapter of the American Civil Liberties Union, whose legal director, Jeff Gamso, is one of Rivera’s attorneys, could be using Rivera’s case to get information from the state on the execution process that it could use in its other legal fights to abolish the death penalty in Ohio.
“My fear is … they’re using this case as a soapbox to oppose the death penalty,” Cillo said.
Gamso argued that if Burge rules the death penalty is unconstitutional, the judge couldn’t allow execution to be considered by a jury as a penalty.
“The question is can a death sentence be carried out if the only means of execution in the state of Ohio is unconstitutional?” Gamso asked.
Burge said he will make a decision in the next few weeks on whether he’ll go forward with the full hearing, now set for July 30. In the meantime, he ordered the Ohio Department of Rehabilitation and Correction to comply with a previous order he issued to turn over records sought by defense attorneys for an expert to review.
Last month, the state prison system asked Burge to clarify where he got the authority to order them to turn over anything, but Burge ruled Monday that since the prisons are part of the state government and the case is being tried as the State of Ohio vs. Ruben Rivera, he has the power to order them to produce evidence.
Burge did agree that he can’t force the prison system to create any documents for the case, but he also held that if the information is available — which he believes most of it is — that it must be given to Rivera’s expert.
Gamso said after the hearing that the information the expert needs – ranging from an equipment list to maintenance and training procedures to the layout of the death chamber at the Southern Ohio Correctional Facility in Lucasville – is vital.
“Things like distance and angles matter,” he said.
For instance, he said, it would take more pressure to pump the lethal three-drug cocktail through 17 feet of tubing than 1½ feet of tubing, Gamso said. He also said kinks in the line could slow the flow of the drugs, prolonging death for a condemned inmate. If that happens, a sedative used in the process could wear off and leave the dying inmate conscious, but unable to move as he suffocates and suffers a heart attack, he said.
County Prosecutor Dennis Will said the U.S. Supreme Court already has upheld Ohio’s death penalty and the issue of whether Ohio’s lethal injection process is torture already is being considered in a federal lawsuit by several Ohio death row inmates.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.