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Published: Tuesday, 10/6/2009

2 death-row inmates get reprieve from governor

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS — Gov. Ted Strickland Monday issued reprieves for two death-row inmates as the state reworks its lethal injection process in the wake of an aborted execution attempt last month.

The governor delayed the executions until March and April respectively for Lawrence Reynolds, who had been scheduled to die on Thursday, and Darryl Durr, whose lethal injection was set for Nov. 10. Both are from northeastern Ohio.

Monday's action came just hours after the Cincinnati-based U.S. 6th Circuit Court of Appeals voted 2-1 to postpone Reynolds' execution while a federal judge looks into allegations from Romell Broom, whose execution went awry on Sept. 17. Broom and Reynolds have both argued that Ohio's lethal-injection process violates their constitutional right against cruel and unusual punishment.

In an unprecedented move, Mr. Strickland intervened on Sept. 17 to halt Broom's execution two hours into the process after the state's team of medical technicians failed, after as many as 18 attempts, to find a vein through which the lethal cocktail of three drugs could flow.

At one point Broom, convicted in the 1984 rape and stabbing of a teenage girl in Cleveland, attempted to help his would-be executioners find a usable vein to hasten the process.

The governor’s reprieve order came yesterday as Ohio Attorney General Richard Cordray was in the process of urging the U.S. Supreme Court to put Reynolds’ execution back on track.

“Since Sept. 15, the Department of Rehabilitation and Corrections has been working to establish a backup or alternative lethal injection protocol in the unlikely event similar circumstances arise when implementing the death penalty in the future,” Mr. Strickland noted in his order.

“While the department has made progress, additional time is needed to fully conduct a thorough and comprehensive review of an alternative or backup lethal injection protocol that is in accordance with Ohio law,” he wrote.

The Democratic governor left the door open for additional reprieves if the department decides it needs more time to enact a new process and retrain the execution team. Among those whose execution dates have been set is Vernon Smith, formerly of Toledo, who is scheduled to die Jan. 7 for the 1993 robbery and murder of a central Toledo carry-out owner.

Reynolds was convicted in the 1994 strangling of a 67-year-old widow near Akron. His execution is now set for March 9. Durr, convicted in the rape and murder of an Elyria girl, now faces execution on April 20.

In a decision one judge characterized as tantamount to a moratorium on Ohio’s death penalty, the 6th Circuit postponed Rey nolds’ execution until U.S. District Court Judge Gregory Frost holds a hearing on Broom’s challenge on Nov. 30.

“Given the important constitutional and humanitarian issues at stake in all death penalty cases, these problems in the Ohio lethal injection protocol are certainly worthy of meaningful consideration,” wrote 6th Circuit Judge Boyce M. Martin, Jr.

In his dissent, Judge Jeffrey Sutton argued that Ohio’s protocol is substantially similar to that of Kentucky, which was upheld by the U.S. Supreme Court. That high court ruling essentially broke an informal logjam of executions in Ohio and other states.

“In all material respects, Ohio and Kentucky have the same procedure, making it exceedingly unlikely that Reynolds would succeed where [the Kentucky case] failed,” Judge Sutton wrote. “Making matters worse for Reynolds, Ohio has changed its procedure since [the Kentucky case], all in ways designed to make the wrenching task of executing an individual more humane.”

Although the two-judge majority did not enact a moratorium on executions while the Broom legal challenge is under way, Judge Sutton argued that the Reynolds stay effectively serves as one.

Jeff Gamso, former legal director for the American Civil Liberties Union of Ohio, applauded the court’s decision, saying he expects more stays until Judge Frost issues a decision.

“The problem is simple,” he said. “Ohio has demonstrated it can’t do this right consistently and with any certainty, and that changes the legal landscape of these cases. The Supreme Court said if a state demonstrates an inability to obey the dictates of the law, and can’t manage to do it on a consistent basis without inflicting unnecessary and unreasonable pain, then it has a constitutional problem.”

Ohio’s prison system revised its lethal injection process after similar problems arose in the 2006 execution of Joseph Lewis Clark, who was put to death for the 1988 robbery murder of a Toledo gas station clerk. The technicians eventually succeeded in finding a usable vein, but a process that usually takes 10 to 15 minutes lasted an hour and a half before Clark was declared dead.

Contact Jim Provance at:jprovance@theblade.comor 614-221-0496.



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