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Judge Frost Gives Ohio Another Chance, 4-4-12 Opinion

Judge Frost Gives Ohio Another Chance, 4-4-12 Opinion

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Published by: jmgamso on Apr 04, 2012
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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF OHIOEASTERN DIVISIONIN RE: OHIO EXECUTIONPROTOCOL LITIGATION Case No. 2:11-cv-1016JUDGE GREGORY L. FROSTMagistrate Judge Mark R. AbelThis document relates to: Mark Wiles.OPINION AND ORDER
Can Ohio now be trusted?The context surrounding this question necessarily starts with the axiomatic propositionthat the United States Constitution does not require a perfect execution. Its protections do notrequire perfect adherence to every single provision of Ohio’s execution protocol withoutdeviation, much less perfect adherence to every protocol provision in training sessions. But theConstitution does require that Ohio apply its protocol in a manner that does not offendconstitutional protections.Ohio has routinely offended these protections.These offenses have not been simple errors of no importance. Mistakes happen. Therandom misadventure that can result when Ohio errs by not following its protocol may beregrettable but constitutional, depending upon the circumstances involved. What is notconstitutional is a policy of sporadic adherence to the execution protocol that allows if notendorses institutional incompetence and presents aberrational state conduct endangering rightsthe Constitution confers on everyone, no matter how heinous a crime an inmate has committed.Thus, although Ohio does not need to follow each step in its protocol in an identical manner inevery execution the state conducts, Ohio does need to apply the protocol under the same set of 
Case: 2:11-cv-01016-GLF-MRA Doc #: 107 Filed: 04/04/12 Page: 1 of 49 PAGEID #: 5216
 
permissible overarching rules for each capital inmate.Ohio argues that regardless of what happened in the past, the state can now be trusted todo the right thing.Against this backdrop, the captioned case is before the Court for consideration of Plaintiff Mark Wiles’ motion for a temporary restraining order and a preliminary injunction(ECF No. 84) and Defendants’ memorandum in opposition (ECF No. 95). Plaintiff seeks a stayof his scheduled April 18, 2012 execution, while Defendants seek to persuade this Court onceagain that they are able to implement Ohio’s execution protocol in a constitutional manner.Ohio has time and again failed to follow through on its own execution protocol. Theprotocol is constitutional as written and executions are lawful, but the problem has been Ohio’srepeated inability to do what it says it will do. As a result, this Court has dealt with inmatechallenges to the constitutionality of Ohio’s execution protocol for close to eight years.
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Duringthat time, the litigation has morphed from focusing primarily on allegations of cruel and unusualpunishment to allegations of equal protection violations. And as this Court has previously stated,“Ohio has been in a dubious cycle of defending often indefensible conduct, subsequentlyreforming its protocol when called on that conduct, and then failing to follow through on its ownreforms.”
 In re Ohio Execution Protocol Litig. (Lorraine)
, No. 2:11-cv-1016, 2012 WL 84548,at *1 (S.D. Ohio Jan. 11, 2012). Ohio has now come forward with yet another set of reforms toits practices that it assures this Court will remedy the state’s unconstitutional conduct.
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The original execution protocol case dates back to 2004. Over the years, variousinmates filed additional cases. By agreement of the parties, the Court ultimately consolidated allthe execution protocol cases under case number 2:11-cv-1016 and closed the four original caseson the docket so that the parties would be able to proceed under only one case number.
See
ECFNo. 11.2
Case: 2:11-cv-01016-GLF-MRA Doc #: 107 Filed: 04/04/12 Page: 2 of 49 PAGEID #: 5217
 
The Court is admittedly skeptical about Ohio’s ability to following through on its latestreforms. At the heart of these reforms is Ohio’s promise that newly implemented chain-of-command and documenting procedures and a renewed if not newfound commitment toconducting constitutional executions finally mean that the state can carry out executions in aconstitutional manner.Thus, the question before the Court is whether it should believe Ohio’s latest round of promises. If this Court cannot, then the end result is a stay of the Wiles execution based onanalysis that will likely lead to a court-ordered moratorium on executions in Ohio. If this Courtdoes believe Ohio, then the state can proceed to execute Wiles and this Court will soon learnwhether it erred in believing Ohio once again and perhaps one time too many.The answer to the foregoing question turns on the burden involved. Wiles has the burdenof convincing this Court that Ohio cannot be trusted, even in light of the new facts presented tothe Court. Because he has failed to meet that burden, with the evidence nearly if not completelyequally balanced on whether this Court can trust Ohio, Ohio can proceed to fulfill its lawful dutyto execute Wiles.
I. Background
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This litigation is a 42 U.S.C. § 1983 civil rights action brought by multiple inmates whochallenge various facets of the execution protocol used by the State of Ohio. Most recently,various plaintiffs have sought to obtain stays of their execution dates based on claims that Ohio’s
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The findings of fact related to this Opinion and Order are not conclusive given that“findings of fact and conclusions of law made by a district court in granting a preliminaryinjunction are not binding at a trial on the merits.”
United States v. Edward Rose & Sons
, 384F.3d. 258, 261 (6th Cir. 2004) (citing
Univ. of Texas v. Camenisch
, 451 U.S. 390, 395 (1981)).3
Case: 2:11-cv-01016-GLF-MRA Doc #: 107 Filed: 04/04/12 Page: 3 of 49 PAGEID #: 5218

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