Ohio’s Lethal Flip Flop: Court Should Hold State To Consistent Legal Position on How To Execute

June 12, 2017
Guest Post

by Virginia Sloan, President of the Constitution Project and Sarah Turberville, Director of Justice Programs, The Constitution Project

Outside of the legal profession, judicial estoppel, or the doctrine that prevents a party to a lawsuit from taking inconsistent positions about the same issue at different phases of the legal proceeding, is not particularly well-known. However, it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants. Non-attorneys unfamiliar with the legal doctrine of judicial estoppel need look no further than pending lethal injection litigation in Ohio to understand its crucial importance in our system.

In a remarkable series of losses and appeals, Ohio state officials are currently attempting to convince yet another federal court to allow them to use a lethal injection protocol which is in direct violation of representations state officials made eight years ago in order to prevail at an earlier phase of the ongoing litigation.  

They have already lost twice, but state officials recently secured rehearing so their appeal will now be heard by the full U.S. Court of Appeals for the Sixth Circuit. That argument is scheduled for June 14, 2017 in Cincinnati.

To understand the situation, it is necessary to go back and look at the lawsuit and landscape when the State originally made definitive statements about its lethal injection protocol. 

From 1999-2009, Ohio conducted executions using a three-drug method that included sodium thiopental, a barbiturate, followed by pancuronium bromide, a paralytic agent and then potassium chloride to stop the heart. Over the years, various legal challenges questioned the constitutionality of that drug combination, given the intense pain caused by the second and third drugs. Multiple other states also used this drug combination; and criticism was mounting, in Ohio and elsewhere, as evidence accumulated calling the continued use of the method into question.

In mid-2008 an Ohio state trial court held that the three-drug protocol was “inconsistent with the intent of the General Assembly…and violates the duty …to ensure the statutory right of the condemned person to an execution without pain, and to an expectancy that his execution will be painless.” State v. Rivera.

In March 2009, a federal district court held a five-day hearing on a motion by death row prisoner Kenneth Biros which included a challenge to Ohio’s execution method. Though the court did not stop the State at that time from moving forward with the three-drug protocol, it was sharply critical of its conduct. In his 159-page opinion, Judge Gregory L. Frost wrote,

“It would wholly confound this Court and no doubt many if not most of the people of the State of Ohio, however, if Defendants regarded today’s interlocutory decision as a wholesale endorsement of Ohio’s protocol, practices, and policies, both written and unwritten, and then did nothing to improve them.”

It was in this climate of growing judicial concern about Ohio’s three-drug protocol that the two-hour unsuccessful attempted execution of Romell Broom occurred, in September 2009, the first—and only—prisoner in U.S. history to survive an attempted lethal injection execution.

After the failed execution, and facing an imminent trial in July 2010 on the prisoners’ challenges to Ohio’s three-drug lethal injection method, Ohio announced in November 2009 that it would never again use the paralytic drug pancuronium bromide and potassium chloride in executions. State officials represented they would use a one-drug, barbiturate-only method instead.

The same day Ohio announced this change, it filed a motion for summary judgment in the pending litigation, asking the federal court to dismiss all challenges to the three-drug protocol because, as the State argued, the change in execution drugs meant the claims about the two painful drugs were “moot.” The State’s filing unequivocally declared “there is no possibility here that the allegedly unconstitutional conduct will reoccur.” The federal courts accepted Ohio’s argument, and its representations, with the Sixth Circuit explicitly holding that “any challenge to Ohio’s three-drug execution protocol is now moot.” With the prisoners’ constitutional claims thus mooted in this way, the State proceeded to carry out 20 executions over the next eight years, including that of Mr. Biros in December 2009.

Fast forward to October 2016: Ohio reneged on its promises. State officials announced that their “new,” three-drug protocol will again include a paralytic and potassium chloride.

Unsurprisingly, the courts did not look favorably upon Ohio’s flip-flopping. In his order, following a five-day evidentiary hearing in 2017, U.S. Magistrate Judge Michael R. Merz wrote that “the position the State of Ohio now takes – that it will execute [prisoners] using a paralytic agent and potassium chloride – is completely inconsistent with the position it took on appeal in Cooey (Biros) and on remand from that decision before Judge Frost. Ohio prevailed on its contrary position and is now judicially estopped from re-adopting a paralytic agent and potassium chloride as part of the Execution Protocol.”

On April 5, 2017, a three-judge panel from the U.S. Court of Appeals for the Sixth Circuit agreed, upholding the preliminary injunction.

The State petitioned for the full court to hear the case, and in coming weeks, Ohio will try for the third time to explain why it is acceptable to render litigation moot by making one representation, and then later in that same litigation to propagate actions in contravention of that representation.

Judicial estoppel prevents parties from manipulating legal proceedings, requiring parties to maintain consistency within the course of litigation. The changing of positions based on convenience or “exigencies of the moment” is not authorized by law, and is particularly reprehensible when the issue at hand is one of life or death. Ohio apparently needs a third ruling to remind officials that what they promised the federal courts in 2009 still binds them in 2017. The law demands that the State devise an execution protocol consistent with its word.