COLUMBUS, Ohio – A federal judge on Friday temporarily halted an unprecedented second attempt at lethal injection of an Ohio inmate whose execution was halted this week after he said prison staff painfully hit muscle and bone while trying to access a suitable vein.
U.S. District Judge Gregory Frost issued a temporary restraining order effective for 10 days against the state, preventing a second execution attempt on Romell Broom from going forward as planned Tuesday.
Attorneys for the state consented to the request for a delay from Broom's attorneys, who will argue that the pain Broom experienced during the aborted attempt violates a constitutional ban on cruel and unusual punishment. A hearing is scheduled for Sept. 28 on Broom's attorneys' request for a preliminary injunction against the execution.
Tim Sweeney, an attorney for Broom, also filed an application for a stay with the U.S. Supreme Court on Friday in an attempt to get Broom added to an ongoing federal lawsuit against Ohio's lethal injection process.
Sweeney hopes to achieve clemency for Broom, but failing that, he will argue that his client shouldn't be executed until a new procedure can be put in place that ensures there will be no repeat of Tuesday's failed attempt.
"Waiting to be executed again is anguishing," Broom said in an affidavit filed in federal district court in Columbus. "It is very stressful to think about the fact that the State of Ohio intends to cause me the same physical pain next week."
A central element of Broom's argument rests on statements made by the U.S. Supreme Court when it upheld Kentucky's lethal injection procedure in an April 2008 ruling. The court said that a "hypothetical situation" involving "a series of aborted attempts" at execution "would present a different case," Sweeney said in his federal court filing.
Chief Justice John Roberts suggested at the time that the court will not halt scheduled executions in the future unless "the condemned prisoner establishes that the state's lethal injection protocol creates a demonstrated risk of severe pain."
Broom told his attorneys he was pricked as many as 18 times Tuesday as prison staff tried to find a suitable vein.
Broom was convicted in the 1984 rape and murder of a 14-year-old girl after abducting her at knifepoint while she was walking home from a football game with friends.
"This is three guys in three years that have had these types of serious problems," said Sweeney, referring to the attempt on Broom and two other executions that were delayed after difficulty finding a suitable vein. "There's a pattern here now in this state."
Broom's case marked the first time an execution in Ohio had to be halted and rescheduled for a later date. In 1947, an electrocution attempt of an inmate in Louisiana failed, and he was returned to death row for nearly a year.
In an affidavit from Broom that was to be submitted as evidence in the federal district court filing, Broom said officials first tried three separate times to access a suitable vein in the middle of both arms.
After the failed six attempts, he said a nurse tried twice to access veins in the left arm.
"She must have hit a muscle because the pain made me scream out loud," Broom said. "The male nurse attempted three times to access veins in my right arm. The first time the male nurse successfully accessed a vein in my right arm. He attempted to insert the IV, but he lost it and blood started to run down my right arm. The female nurse left the room. The correction officer asked her if she was OK. She responded, 'No' and walked out.
"The death squad lead made a statement to the effect that this was hard on everyone and suggested that they take another break."
Officials later tried to find an accessible vein in Broom's feet. During that attempt, Broom said the needle his bone and was very painful.
"I screamed," Broom said in the affidavit.
Gov. Ted Strickland granted a one-week reprieve to Broom on Tuesday, after execution staff struggled for two hours to find a vein that would not collapse when a saline solution was administered.
On Friday, the American Civil Liberties Union of Ohio filed a public records request with the state in an attempt to learn information about the preparation for the first attempt, details about the attempt and information about preparations for the next scheduled attempt. The Ohio Association of Criminal Defense Lawyers sent Strickland a letter Thursday asking him to place a moratorium on Ohio executions given Tuesday's events.
A prisons spokeswoman said Thursday that officials at the Southern Ohio Corrections Facility where Broom is being kept in a cell in the infirmary in preparation for next week's attempt are monitoring how much he's drinking.
Dehydration could make it more difficult to find veins, but the spokeswoman said there's no evidence that's what caused Tuesday's problems.