Execution Watch: Can State Try To Kill Same Man Twice?

(AP/S.L. Dennee, Paducah Sun)
COLUMBUS, Ohio (CBS/AP) He was the condemned prisoner that was set to die last week in Ohio until a vein — or rather the lack of a usable one — halted his execution after hours of toil.

Technicians searched for a vein strong enough to deliver a three-drug lethal injection into convicted killer Romell Broom until ultimately giving up.

But can the State of Ohio try to execute the same man twice?

That was the question posed to a federal judge on Friday, who temporarily halted an unprecedented second attempt at execution. Broom was convicted in the 1984 rape and murder of a 14-year-old girl after abducting her at knifepoint in Cleveland while she was walking home from a football game with friends.

Last week's lethal injection attempt was marred by painful needle sticks into his bone and muscles, Broom says.

(AP Photo)
Photo: Death row inmate Romell Broom in undated image frmo Ohio Department of Rehabilitation and Correction.

U.S. District Judge Gregory Frost issued a temporary restraining order effective for 10 days against the state, preventing a second from going forward as planned Tuesday.

Attorneys for the state consented to the request for a delay from Broom's attorneys, who will argue that the pain Broom experienced during the aborted attempt violates a constitutional ban on cruel and unusual punishment. A hearing is scheduled for Sept. 28 on Broom's attorneys' request for a preliminary injunction against the execution.

Tim Sweeney, an attorney for Broom, said his client is "relieved," but he noted there is still work to do.

"There's still a state that wants to execute Romell Broom even though he's been through this horrific, torturous 2½-hour battle with the executioners on Tuesday, and it's our hope that we can convince the courts that once the state has tried once to execute this man and has failed that they can't try again," he said.

Sweeney also filed an application for a stay with the U.S. Supreme Court on Friday in an attempt to get Broom added to an ongoing federal lawsuit against Ohio's lethal injection process. He filed another attempt to get the execution blocked with the Ohio Supreme Court.

Sweeney hopes to achieve clemency for Broom, but failing that, he will argue that his client shouldn't be executed until a new procedure can be put in place that ensures there will be no repeat of Tuesday's failed attempt.

"Waiting to be executed again is anguishing," Broom said in an affidavit filed in federal district court in Columbus. "It is very stressful to think about the fact that the State of Ohio intends to cause me the same physical pain next week."

While the state consented to the delay, the prosecutor in Cuyahoga County, ; where Broom's crime occurred 25 years ago, opposed it, saying the execution had never begun because the lethal drug cocktail never began flowing into Broom's body.

"Broom's allegations of cruel and inhumane treatment are wholly unfounded," Bill Mason said.

Broom was convicted in the 1984 rape and murder of a 14-year-old girl after abducting her at knifepoint in Cleveland while she was walking home from a football game with friends.

Broom was being held Friday at the Southern Ohio Correctional Facility in Lucasville where inmates are executed, but he will "very shortly" be transported back to the Youngstown prison where most death-row inmates are held, said his other attorney, Adele Shank.

A central element of Broom's argument rests on statements made by the U.S. Supreme Court when it upheld Kentucky's lethal injection procedure in an April 2008 ruling. The court said that a "hypothetical situation" involving "a series of aborted attempts" at execution "would present a different case," Sweeney said in his federal court filing.

Chief Justice John Roberts suggested at the time that the court will not halt scheduled executions in the future unless "the condemned prisoner establishes that the state's lethal injection protocol creates a demonstrated risk of severe pain."

Broom told his attorneys he was pricked as many as 18 times Tuesday as prison staff tried to find a suitable vein.

"This is three guys in three years that have had these types of serious problems," said Sweeney, referring to the attempt on Broom and two other executions that were delayed after difficulty finding a suitable vein. "There's a pattern here now in this state."

Broom's case marked the first time an execution in Ohio had to be halted and rescheduled for a later date. In 1947, an electrocution attempt of an inmate in Louisiana failed, and he was returned to death row for nearly a year.

In an affidavit from Broom that was to be submitted as evidence in the federal district court filing, Broom said officials first tried three separate times to access a suitable vein in the middle of both arms.

After the failed six attempts, he said a nurse tried twice to access veins in the left arm.

"She must have hit a muscle because the pain made me scream out loud," Broom said. "The male nurse attempted three times to access veins in my right arm. The first time the male nurse successfully accessed a vein in my right arm. He attempted to insert the IV, but he lost it and blood started to run down my right arm. The female nurse left the room. The correction officer asked her if she was OK. She responded, 'No' and walked out.

"The death squad lead made a statement to the effect that this was hard on everyone and suggested that they take another break."

Officials later tried to find an accessible vein in Broom's feet. During that attempt, Broom said the needle his bone and was very painful.

"I screamed," Broom said in the affidavit.

Gov. Ted Strickland granted a one-week reprieve to Broom on Tuesday, after execution staff struggled for two hours to find a vein that would not collapse when a saline solution was administered.

On Friday, the American Civil Liberties Union of Ohio filed a public records request with the state in an attempt to learn information about the preparation for the first attempt, details about the attempt and information about preparations for the next scheduled attempt. The Ohio Association of Criminal Defense Lawyers sent Strickland a letter Thursday asking him to place a moratorium on Ohio executions given Tuesday's events.