Update: Ohio Attorney General DeWine appealed the stay of execution order in the Lorraine case to the U.S. Supreme Court. On February 8, the U.S. Supreme Court declined to lift the stay of execution.

As I have previously written here and here, Justice Paul Pfeifer has really stepped up his public criticism of Ohio’s death penalty. As strong as his words have been, they’re tame compared to those of U.S. District Judge Greg Frost of Newark,Ohio.  Judge Frost sits in Columbus.  Back in the day, when we were both state court judges, we taught a couple of continuing judicial education subjects together.

Judge Frost has been engaged in a battle with the state for nearly eight years over its  execution protocol.  He just said exactly that in an opinion January 11 granting a stay of execution to condemned murderer Charles Lorraine. After Frost wrote another and even harsher decision last July, (reported at 801 F. Supp.2d 623 (2011)), rather than defend itself further, the state re-wrote its protocols for carrying out the death penalty.  But in the Lorraine case, Judge Frost excoriated the state for failing to carry out those very protocols.  Let me quote you verbatim the beginning of his opinion. Warning—this is rough stuff.

“This case is frustrating. For close to eight years, the Court has dealt with inmate challenges to the constitutionality of Ohio’s execution protocol. During that time, the litigation has morphed from focusing primarily on allegations of cruel and unusual punishment to allegations of equal protection violations. Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms. Occasionally in this litigation, state agents lie to the Court. At other times, different state actors impress this Court with their sincere devotion to carrying out the unenviable task of executing death-sentenced inmates within constitutional parameters. As a result of laudable effort by the various state actors involved–motivated either by duty, embarrassment, the decisions of this Court, or a combination of any of the foregoing–Ohio finally arrived at a protocol that on paper satisfies every Eighth and Fourteenth Amendment challenge thrown against it. Then once again Ohio decided to carry out the protocol in a manner that simply ignores a key component of the execution scheme.

“The end result is that rather than proceeding to a final conclusion in this case that would enable Ohio to proceed to fulfill its lawful duty to execute inmates sentenced to death free from this ongoing litigation, Ohio has unnecessarily and inexplicably created easily avoidable problems that force this Court to once again stay an execution.

“This is frustrating to the Court because no judge is a micro-manager of executions and no judge wants to find himself mired in ongoing litigation in which he must continually babysit the parties. But the law is what it is, and the facts are what they are. The Constitution demands that a judge honor the rights embodied in that document, that a judge appreciate the nuance involved in those rights rather than adopting a constitutionally irresponsible, “big-picture, close enough” approach, and that a judge follow the evidence presented by the parties to whatever principled conclusion it leads–no matter how easily avoided and frustrating that conclusion may be. In other words, if Ohio would only do what it says it will do, everyone involved in this case can finally move on. “

You can read the entire opinion here.  The Sixth Circuit Court of Appeals swiftly affirmed Judge Frost’s decision, writing, “We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted.”

The timing of all of this is quite interesting, because the task force on the death penalty commissioned last year by Chief Justice Maureen O’Connor with the Ohio State Bar Association to review the administration of Ohio’s death penalty met the day after Judge Frost’s decision came out, which certainly provodes the members with food for thought. O’Connor made it very clear from the outset that the task force was not going to consider whether Ohio should or should not have the death penalty. I wonder, though, if the task force can really avoid that issue. The task force is chaired by retired court of appeals judge James Brogan of Dayton, and is made up of academics, judges, prosecutors, defense lawyers, the state public defender’s office, and lawmakers.  

Additionally, a number of newspapers around the state are beginning to raise questions about Ohio’s death penalty.

I definitely sense change is in the wind.