Ohio: Romell Broom asks judge to stop 2nd execution try

COLUMBUS, Ohio — A day after Ohio became the first state in the country to use a single drug in a lethal injection, the condemned killer whose botched September execution prompted the change from a three-drug method returns to court to argue that another try to put him to death would be unconstitutional.

A federal judge was to hear arguments beginning Wednesday on whether the state, having bungled inmate Romell Broom's execution Sept. 15, should be prevented on constitutional grounds from a second attempt.

Following that execution try, which U.S. District Judge Gregory Frost has labeled a "debacle," the state changed its execution methods to one intravenous drug with a backup method involving intramuscular injection.

On Tuesday morning, the state executed killer Kenneth Biros with one dose of thiopental sodium in the death chamber at the Southern Ohio Correctional Facility. Biros, 51, became the first inmate in the country to be executed with one drug. The U.S. Supreme Court rejected Biros' final appeal earlier Tuesday.

After the chemical started flowing, Biros' chest heaved several times, and he moved his head twice over a span of about two minutes before lying perfectly still.

The mother, sister and brother of Biros' victim, 22-year-old Tami Engstrom, applauded as the warden announced the time of death.

"Rock on," the sister, Debi Heiss, had said a moment earlier as the curtains were drawn for the coroner to check on Biros. "That was too easy."

Biros killed Engstrom near Warren, in northeastern Ohio, in 1991 after offering to drive her home from a bar, then he scattered her body parts in Ohio and Pennsylvania. Before dying Tuesday, he apologized for his crime.

"I'm being paroled to my father in heaven," Biros said. "I will now spend all of my holidays with my Lord and savior, Jesus Christ."

The state switched its execution methods with two goals: to end a 5-year-old lawsuit claiming that Ohio's three-drug system was capable of causing severe pain and to create a backup procedure if the first one didn't work.

That backup plan, untested on U.S. inmates, allows a two-drug injection into muscle if a usable vein cannot be found. That did not become necessary in Biros' case.

The only case similar to the botched Broom execution happened in Louisiana in 1946, when a first attempt to execute Willie Francis did not work. Francis was returned to death row for nearly a year while the U.S. Supreme Court considered whether a second electrocution would be unconstitutional.

The court ultimately ruled 5-4 against Francis, and he was put to death in 1947.

However, Justice Felix Frankfurter, a swing vote in the court's decision, said a different set of facts could have led to a different decision. Those facts could include "a series of abortive attempts at electrocution," he wrote.

Broom, 53, said he was stuck with needles at least 18 times, the pain so intense he cried and screamed out. His attorneys say it would constitute cruel and unusual punishment for the state to try again and would violate Broom's double jeopardy rights, punishing him twice for the same crime.

"What happened to Broom on September 15, 2009, at defendants' hands and under their direction was inhuman and barbarous," Broom's attorneys, Timothy Sweeney and Adele Shank, argued after the execution attempt. "It should not be permitted to happen again."

Broom was sentenced to die for the rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland in September 1984 as she walked home from a Friday night football game with two friends.

The state opposes canceling a second try, saying Broom's execution was carried out according to the protocols then in place.

"There is no evidence that Broom suffered pain of such severity as to rise to the level of severe pain prohibited by the Eighth Amendment," Assistant Attorney General Charles Wille argued last month.

Gov. Ted Strickland stopped Broom's execution and issued a one-week reprieve, which was extended. One of the first issues before Frost is a request by the state to keep Strickland from testifying about his decision.

Frost has already had harsh words for the state and its handling of Broom's case. In a ruling Monday that allowed Biros' execution to proceed, he said the state's decision to abandon written protocols during the Broom execution bid was an "incomprehensible step."

Frost pointed to the testimony of two execution team members who said they failed to discuss and plan for anticipated problems with accessing veins with Broom. He also highlighted the state's decision to ask a visiting doctor to enter the holding cell and try to help insert a needle.

Prisons spokeswomen said they were unaware of a doctor being asked for such assistance in the past and there were no plans to do so in the future.

Frost singled out the reaction of a member of the execution team upon discovering the doctor in the holding cell: "And I'm like, 'Dear God, what is she doing here?'"

"That is a question," Frost said in his Monday ruling, "that requires an answer."

Source: The Associated Press, December 9, 2009