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Federal judge upholds Ohio execution policies

By Andrew Welsh-Huggins
AP Legal Affairs Writer / November 4, 2011

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COLUMBUS, Ohio—A federal judge on Friday upheld changes Ohio made to its execution policies, saying the state had tightened procedures that the judge previously criticized, such as not having enough executioners on a given day.

The ruling by U.S. District Judge Gregory Frost rejected a request by condemned inmate Reginald Brooks to delay his Nov. 15 execution for killing his three sons as they slept in 1982.

In separate decisions Friday, the Ohio Supreme Court also denied three other requests for delay by Brooks' attorneys, moving the 66-year-old inmate closer to being the first Ohio death row prisoner executed in six months.

Brooks, who has argued he is mentally ill, would be the oldest person put to death in Ohio if executed. He has also asked Gov. John Kasich to grant him mercy, although the Ohio Parole Board on Monday unanimously recommended against clemency.

Defense attorneys had argued that the changes Ohio made to its policies since the judge's scathing July decision shouldn't be trusted and in fact may have made things worse.

But Frost, while acknowledging he remains wary of the state's conduct, said the Ohio Department of Rehabilitation had convinced him that the changes are well-intentioned and for the better.

"Things have changed," Frost wrote in a 24-page ruling. "Defendants have tightened procedures and have implemented checklists and safeguards ... that, effectively employed, will serve to reinforce the protocol requirements."

By contrast, Frost scolded the state in July for creating what he called a "haphazard application" of its death penalty protocols.

Frost said the state didn't follow its own rules for executions on everything from staffing to checking an inmate's veins to be sure that IV delivering the lethal chemicals can be inserted on the day of execution.

No decision has been made about appealing Frost's decision, said Brooks' federal public defender, Allen Bohnert, who called the ruling disappointing. He said he believes the evidence was clear that Ohio still doesn't follow its own rules.

In August, the state announced it would require post-execution reviews of all lethal injections and a physical evaluation of the condemned person's veins three weeks prior to execution as part of policy changes made in response to Frost's criticism.

Among other changes, the new policy specifies an "Order for Execution Medications" form that must be completed by those handling drugs, and it allows the warden who oversees executions to designate a doctor as an auxiliary member of the team for consultation during training or unanticipated circumstances.

The prisons system has bolstered its training, documentation, and quality review procedures to demonstrate Ohio's commitment to humane executions, spokesman Carlo LoParo said Friday in a statement.

"Ohio's revised lethal injection policy and practices are the most comprehensive in scope and will be best documented in the nation," he said.

The Supreme Court rejected appeals by Brooks to allow him to argue his mental competency and for a new trial.

The court also rejected a request for a delay until a statewide committee finishes studying the fairness of Ohio's capital punishment law.

"If the court recognizes the system might be broken, shouldn't we be sure that everything is done properly and right before we kill somebody," said Michael Benza, Brooks' attorney on the state appeals.

The review ordered by Chief Justice Maureen O'Connor of the Ohio Supreme Court seeks "a fair, impartial, and balanced analysis" of Ohio's 30-year-old law. But O'Connor has made it clear the review committee isn't debating capital punishment itself.

Brooks still has appeals in both state and federal courts regarding his history of mental illness, as well as an argument that the son of a state court judge -- a judge who previously ruled against Brooks -- was wrongly appointed to represent Brooks on a later, federal appeal.

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Andrew Welsh-Huggins can be reached at http://twitter.com/awhcolumbus.

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