October 24, 2014

Elyria
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State hands over papers for death penalty hearing

ELYRIA — Defense attorneys hoping to have county Common Pleas Judge James Burge declare the state’s lethal injection process unconstitutional have a lot of reading to do.

On Wednesday, the Ohio Department of Rehabilitation and Correction turned over nearly 700 pages of information on how it carries out executions — information that Burge had ordered it to produce at the request of attorneys for accused killers Ruben Rivera and Ronald McCloud.

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CHUCK HUMEL / CHRONICLE
Attorney Daniel Wightman (left) and Jeff Gamso, legal director with the American Civil Liberties Union, talk during a hearing on the death penalty for clients Ronald McCloud (lower left) and Ruben Rivera. Rivera’s interpreter, Milagros Pepple, is seated in the background.

The state had taken its efforts to keep the information out of the hands of defense attorneys all the way to the Ohio Supreme Court, which ordered it to comply with Burge’s order in October.

The binder contained minute-by-minute accounts of previous executions and information on the equipment, drugs, process and training used in the lethal injection process, but the details won’t be made available to the general public or anyone outside the attorneys in the case and the experts they plan to have review the information.

Burge granted a request from Assistant County Prosecutor Tony Cillo to bar those who have possession of the information from releasing it to anyone else, although the judge later said he isn’t certain his decision would withstand a legal challenge.

Jim Gravelle, a spokesman for the Ohio attorney general’s office, said the state fears that if the information is made public it could lead to the identities of the state’s execution team being revealed, a secret the state wants to keep for security reasons.

Jeff Gamso, legal director for the Ohio chapter of the American Civil Liberties Union who also is representing Rivera and McCloud, said the names of team members weren’t included in the information turned over to him. But a list of their training — including two members who are trained emergency medical technicians — was included.

Gravelle said if that training information was released, it could allow someone to figure out who among the staff at the Southern Ohio Correctional Facility in Lucasville, where the state’s death house is, participates in executions.

“It could be a slippery slope,” he said.

Terry Collins, director of the state prison system, refused to say publicly what other training execution team members have, although he admitted that one was a “medical person” but would provide no more specifics.

Cillo also said he feared that defense attorneys in other cases around the state — including a federal lawsuit challenging the lethal injection process — could make use of the information in their efforts to have the execution method declared cruel and unusual.

Burge — who served as a defense attorney for James Filiaggi of Lorain, who was executed earlier this year for the 1994 murder of his wife — promised to keep an open mind when deciding whether the lethal injection process meets the constitutional standard and a requirement under Ohio law that executions must be quick and painless.

Burge said he intends to determine “whether this protocol is painful and, if it is, how painful and whether it is protracted pain or momentary.”

Gamso said the three-drug cocktail used by the state includes a sedative, a paralytic and a salt that stops the heart. If the sedative, which he described as fast-acting and short-term, wears off, the condemned inmate would suffer a horrifyingly painful death.

“If that’s true, we have a significant number of people suffering a significant amount of pain,” he said.

Gloria Jones, McCloud’s aunt who attended the hearing Wednesday, said she opposes the death penalty because of its flaws.

“In a justice system, we have to temper justice with mercy,” she said.

But Carlos Ortega, one of Rivera’s co-defendants, said Wednesday during a resentencing hearing that Rivera should die for the 2004 robbery and shooting death of Manuel Garcia. Ortega was resentenced to 27 years to life in prison for his role in the robbery, but during his hearing he identified Rivera as the shooter.

“(Rivera) is the one who is facing the death penalty, and he deserves it,” Ortega said as he tried to convince Burge to lower his sentence, a request the judge rejected.

There is a virtual moratorium on executions in the nation as the U.S. Supreme Court weighs a constitutional challenge to lethal injection. Collins said while that moratorium isn’t official, the state has no executions scheduled.

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