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Sixth Circuit Holds Ohio Prisoner Can Be Executed Despite Previous Botched Attempt

A member would at times insert the catheter into a vein, but the vein would not hold, but rather “blow out.” When they finally gave up, they had stuck Broom with needles multiple times at a minimum of 18 sites. Broom had screamed in pain and cried out multiple times, especially when one attempt struck bone. Blood was pouring out of the injection sites and attempts had also been made at both ankles. Finally, the governor granted a reprieve.

A doctor who examined Broom three or four days later photographed the 18 injection sites. Another doctor who saw him a week after the execution attempt noted “considerable bruising” and both “deep and superficial” tissue damage from the injection attempts. He believed the actual number of injection attempts was much higher than the 18 sites indicated because team members would withdraw the needle partway after an unsuccessful attempt then reinsert it in a procedure known as “fishing.”

Broom filed an unsuccessful federal civil rights challenge to a second execution attempt. In the instant case, he filed an unsuccessful state petition for a post-conviction writ of habeas corpus and followed up with an unsuccessful federal habeas action pursuant to 28 U.S.C. § 2254.

Aided by Cleveland attorney Timothy F. Sweeney and Columbus attorney Adele Shank, Broom appealed. The Sixth Circuit noted that the Ohio lethal injection protocol had been upheld multiple times. In state court, Broom introduced expert testimony that his veins “should have been easily accessed” and the execution team had failed to abide by its own protocols. He argued this made the first execution attempt a form of torture and it would violate the Eighth Amendment’s prohibition against cruel and unusual punishment to subject him to the protocol again.

The state habeas trial court had rejected Broom’s arguments and, on appeal, the Ohio Supreme Court had based its decision on Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), which involved unsuccessful electrocution. It held that a second attempt at execution would not violate Broom’s Eighth Amendment rights as the first attempt was not done with the intention of causing physical pain or psychological harm.

The court noted that Ohio had revamped its lethal injection protocol since the unsuccessful attempt and also held that it was not double jeopardy to try to execute Broom again because no lethal drugs had been injected, only saline solution.

The federal district court dismissed Broom’s habeas petition after holding that he had failed to show that the Ohio Supreme Court’s decision was objectively unreasonable in light of U.S. Supreme Court precedent. The Sixth Circuit agreed that the AEDPA barred Broom’s habeas action because he could not show that the lower court’s decision was “contrary to, or involved an unreasonable application of” the extremely meager U.S. Supreme Court precedents.

The court rejected Broom’s contentions that the Ohio Supreme Court decision was not “on the merits” and that Trop v. Dulles, 356 U.S. 86 (1958), which dealt with the punishment of denationalization, was controlling. It affirmed the district court’s judgment. See: Broom v. Shoop, 963 F.3d 500 (6th Cir. 2020).

Ultimately, the court’s ruling was irrelevant. Before the state could execute him, Brown died in prison of COVID-19 on December 28, 2020. 


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Related legal case

Broom v. Shoop