The Sixth Circuit Court of Appeals denied Kenneth Biros’s request for stay of execution. Richard Cooey,II, Kenneth Biros (Intervenor) v. Ted Strickland, et al., Case No. 09-4474. Biros, one of the litigants in the challenge to Ohio’s previous three-drug protocol, challenged the States implementation of the new one-drug protocol and the back-up intramuscular procedure. The Circuit Court, after a thorough review of the record, affirmed the district court’s order and held that Biros had not met his burden of demonstrating a strong likelihood of success on the merits on his Eighth Amendment claim under any standard set forth in Baze v. Rees, 553 U.S. 35 (2008), because he failed to show that the new protocol, facially or as applied to him, demonstrates a risk of severe pain that is substantial when compared to known and available alternatives. The Court countered that while the new protocol is not perfect, it conforms with the Constitution’s prohibition on cruel and unusual punishment, and is a decided improvement on Ohio’s previous protocol. Moreover, the Court stated that the new protocol is the precise procedure Biros’s fellow litigants in Cooey demanded Ohio implement.
Biros was executed at 11:00 a.m. today. He is the first person to be executed under the one-drug protocol.
Tuesday, December 8, 2009
Wednesday, November 25, 2009
Ohio Executions To Resume
Today, the Sixth Circuit Court of Appeals lifted the stay issued by the district court on October 19, 2009, in Richard Cooey,II, Kenneth Biros v. Ted Strickland, et al., Case No. 09-4300, reinstating Biros's December 8, 2009, execution date. The Circuit Court found that Ohio’s change to a one-drug protocol, effective November 30, 2009, mooted his challenge to Ohio’s previous three-drug execution protocol. The Court went on to say that the key changes to the protocol grew out of, and in direct response to, the underlying litigation which Biros took part in.
Friday, July 17, 2009
Ohio Parole Board Recommends Clemency for Jason Getsy
Today, the Ohio Parole Board released its 5-2 decision in favor of clemency for Jason Getsy, who is scheduled for execution on August 18, 2009. During the clemency hearing held earlier this month, Getsy's family members and his pastor sought mercy for him and asked that his sentence be commuted to life.
Getsy has been on death row since his conviction in 1995 for the aggravated murder of Ann Serafino and the attempted murder of her son. A link to the Ohio Parole Board's Clemency Report is available here.
Getsy has been on death row since his conviction in 1995 for the aggravated murder of Ann Serafino and the attempted murder of her son. A link to the Ohio Parole Board's Clemency Report is available here.
Friday, July 10, 2009
Sixth Circuit Upholds Denial of Expert Funding for Clemency
John Fautenberry is scheduled for execution by the State of Ohio on July 14, 2009. Today in Fautenberry v. Bagley, the Sixth Circuit affirmed the district court’s order denying expert funding under 18 U.S.C. § 3599(f) for a neuropsychologist to provide assistance with clemency.
Fautenberry filed a motion with the district court requesting funds to hire a neuropsychologist to assist in the preparation of his clemency petition. In support of this motion, Fautenberry submitted various exhibits to illustrate the head injuries he suffered as a child. Specifically, Fautenberry submitted an affidavit and a fifteen (15) page report of the neuropsychologist who evaluated Fautenberry in 1996 as well as the neuropsychologist’s resume.
The district court considered Fautenberry’s request in light of §3599(f) and concluded, based on his motion and supporting exhibits, that the service requested was not “reasonably necessary” because Fautenberry had provided no reasons to explain why it would be necessary.
On appeal Fautenberry argued that the district court improperly relied on the 1996 examination and stated that the reliance was erroneous because the 1996 evaluation was incomplete, outdated and unreliable.
However, the Sixth Circuit did not agree and found that Fautenberry had failed to provide evidence showing that the 1996 evaluation was incomplete, outdated and unreliable; failed to present evidence to show that the requested evaluation would not be duplicative of information already available to the Ohio Adult Parole Authority and/or the Governor of the State of Ohio; and, failed to state that he was requesting an updated evaluation. For these reasons the Circuit Court concluded that the district court had not abused its discretion in denying Fautenberry’s request for fees pursuant to §3599(f).
Judge Moore concurred in the judgment but noted that “[e]ven without evidence of specific changes, which in any event, could be discovered only through a current evaluation, it is obvious that Fautenberry’s mental state would have changed in the past thirteen years he has spent on death row.” However Judge Moore went on to state that this argument was not presented to the district court and, accordingly, the district court did not abuse its discretion.
Also in Fautenberry’s appeal to the Sixth Circuit was a request for a stay of execution to permit him to obtain the neuropsychological examination and present the results to the Governor. The request for stay was denied as moot.
Fautenberry filed a motion with the district court requesting funds to hire a neuropsychologist to assist in the preparation of his clemency petition. In support of this motion, Fautenberry submitted various exhibits to illustrate the head injuries he suffered as a child. Specifically, Fautenberry submitted an affidavit and a fifteen (15) page report of the neuropsychologist who evaluated Fautenberry in 1996 as well as the neuropsychologist’s resume.
The district court considered Fautenberry’s request in light of §3599(f) and concluded, based on his motion and supporting exhibits, that the service requested was not “reasonably necessary” because Fautenberry had provided no reasons to explain why it would be necessary.
On appeal Fautenberry argued that the district court improperly relied on the 1996 examination and stated that the reliance was erroneous because the 1996 evaluation was incomplete, outdated and unreliable.
However, the Sixth Circuit did not agree and found that Fautenberry had failed to provide evidence showing that the 1996 evaluation was incomplete, outdated and unreliable; failed to present evidence to show that the requested evaluation would not be duplicative of information already available to the Ohio Adult Parole Authority and/or the Governor of the State of Ohio; and, failed to state that he was requesting an updated evaluation. For these reasons the Circuit Court concluded that the district court had not abused its discretion in denying Fautenberry’s request for fees pursuant to §3599(f).
Judge Moore concurred in the judgment but noted that “[e]ven without evidence of specific changes, which in any event, could be discovered only through a current evaluation, it is obvious that Fautenberry’s mental state would have changed in the past thirteen years he has spent on death row.” However Judge Moore went on to state that this argument was not presented to the district court and, accordingly, the district court did not abuse its discretion.
Also in Fautenberry’s appeal to the Sixth Circuit was a request for a stay of execution to permit him to obtain the neuropsychological examination and present the results to the Governor. The request for stay was denied as moot.
Thursday, June 18, 2009
SCOTUS Refuses to Recognize Access to DNA Testing as a Due Process Right
In today's decision in District Attorney's Office for the Third Judicial District v. Osborne, the Supreme Court, by a 5-4 margin, rejected a criminal defendant's claim that he had a constitutional right to access evidence for DNA testing to prove his innocence. The majority opinion, written by Chief Justice Roberts, did not resolve whether Osborne had persued the proper procedural remedy by filing suit under Section 1983 rather than following the state postconviction/habeas route. Rather, the Court's opinion jumped to the merits.
Chief Justice Roberts noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.”
The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.
Two of the Justices who joined the majority, Justice Alito and Justice Kennedy, said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, asserting that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after first trying the challenge in state court.
They also said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction. Justice Clarence Thomas joined them on that second point, but not on the need to pursue the habeas route.
Chief Justice Roberts noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.”
The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.
Two of the Justices who joined the majority, Justice Alito and Justice Kennedy, said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, asserting that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after first trying the challenge in state court.
They also said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction. Justice Clarence Thomas joined them on that second point, but not on the need to pursue the habeas route.
Monday, June 1, 2009
SCOTUS Reverses the Circuit in Bies v. Bobby
SCOTUS today reversed the Sixth Circuit in Bies v. Bobby, 08-598. Writing for a unanimous Court, Justice Ginsberg found that the Double Jeopardy Clause did not bar the Ohio courts from conducting a full hearing on Bies'mental retardation claim. The Court found that since Bies was attempting to vacate his death sentence, and the State was not seeking to retry him or to increase his punishment, the case did not fall into the perameters of the Double Jeopardy Clause. The Court went on to hold that the doctrine of issue preclusion, barring relitigation of issues actually determined and necessary to the ultimate outcome of a prior proceeding, did not apply. It was not clear to the Court that the issue of Bies’ mental retardation was actually determined under the Lott test at trial or on direct appeal. Further, the Court found that the state courts’ statements regarding Bies’ mental capacity were not necessary to the judgments affirming his death sentence. Curiously, Justice Ginsberg asserted the idea that mental retardation as a mitigator and mental retardation under Atkins and Lott are discrete legal issues. What is odd about this statement is that mental retardation is a medical definition, and the idea that the definition changes with the context would likely surprise the APA.
Monday, April 27, 2009
Oral Argument Transcript in Bobby v. Bies
The oral argument transcript in Bobby v. Bies, 08-598, is available here. The case was argued this morning. A tough day for the good guys.
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