By Alan Johnson
After trying, and failing, to execute convicted killer Romell Broom six years ago, Ohio can try again, the Ohio Supreme Court ruled Wednesday.
A 4-3 ruling written by Justice Judith Lanzinger said the state would not violate the U.S. Constitution's Eighth Amendment ban on cruel and unusual punishment by executing Broom, 59, a Cleveland man convicted and sentenced to death for murdering 14-year-old Tyrna Middleton in 1984.
The court sided with the Cuyahoga County prosecutor, who argued that the botched attempt to execute Broom on Sept. 15, 2009, didn't count as a failed execution because, while the process started, deadly chemicals never entered Broom's body during the two hours before it was called off.
"To be clear, the state must comply with the protocol as amended," Lanzinger wrote. "Strict compliance with the protocol will ensure that executions are carried out in a constitutional manner and can also prevent or reveal an inmate's attempt to interfere with the execution process. We simply are unable to conclude that Broom has established that the state in carrying out a second attempt is likely to violate its protocol and cause severe pain."
In a strongly worded dissenting opinion, Justice Judith French said, "The majority's decision to deny Romell Broom an evidentiary hearing on his Eighth Amendment claim is wrong on the law, wrong on the facts, and inconsistent in its reasoning.
"If the state cannot explain why the Broom execution went wrong, then the state cannot guarantee that the outcome will be different next time."
Justice William O'Neill added in his dissent, "Any fair reading of the record of the first execution attempt shows that Broom was actually tortured the first time. Now we embark on the task of doing it again."
Adele Shank, Broom's Columbus attorney, said she will "assess the options for further review, both in the state and federal system, especially in the U.S. Supreme Court."
"We've always said going through the entire process, including the mental stress and strain and terror of it, is what the U.S. Supreme Court has said in the past is cruel and unusual punishment."
Ohio Public Defender Tim Young, whose office filed a supporting brief in the case, said in response to the ruling, "The vast majority of people in America believe you get one bite at this, one try at executing someone. If you went though the process and it fails, that should be the end."
Dr. Jon Groner, a local physician who examined Broom at the request of his attorneys days after the execution attempt in 2009, said the failure was clearly human error by Department of Rehabilitation and Correction staff.
"He had normal veins. I would conclude the people who tried it were not competent."
Based on the number of failed attempts to access Broom's veins -- 18 locations in all -- Groner described the effort as "somewhere between malpractice and assault," had it been in a medical setting.
It is the first time in recent Ohio history that the state will be allowed a do-over in an execution.
Court records show, and both sides agreed, that Ohio Department of Rehabilitation and Correction employees failed to follow several of the agency's execution protocols, including doing the last of three required medical checks on Broom's veins, incomplete execution-team training, lack of a backup execution procedure, and involvement of a contract physician who was not part of the execution team.
Broom's case is unique in Ohio's capital-punishment history and is one of only two known cases nationally in which an execution was halted after it began. The other one was Willie Francis, a 17-year-old killer who died in Louisiana's electric chair on May 9, 1947, having survived a botched execution a year earlier.
(c)2016 The Columbus Dispatch (Columbus, Ohio)