[Deathpenalty] death penalty news----TEXAS, VA., FLA., ALA., MISS., OHIO

[Rick Halperin]

April 14




TEXAS:

Court grants Duane Buck relief that could remove him from Texas death row


The 5th Circuit Court of Appeals has granted Texas death-row inmate Duane Buck 
the right to pursue his claims of ineffective counsel and relief under a rule 
that covers mistakes and neglect - a move that could spare him from execution.

In February, the U.S. Supreme Court ruled that race improperly tainted inmate 
Buck's death sentence and remanded the case to the lower court for a new 
hearing.

In a two-page ruling filed Thursday, the federal appeals court also ordered him 
released unless the state initiates proceedings for a new trial for punishment 
within six months or "elects not to seek the death penalty and accedes to a 
life sentence."

Buck was convicted in Houston 20 years ago for the killings of his girlfriend, 
Debra Gardner, and her friend, Kenneth Butler. He was sentenced to death after 
a psychologist testified he would be a continuing threat to society because he 
is black.

The case, which has made national headlines for years, could be a harbinger of 
how the country's highest court deals with death penalty cases with racial 
overtones, experts have said.

After February's decision, Harris County District Attorney Kim Ogg said her 
office would review Buck's case, including speaking with the victims' families 
and looking over mitigation evidence, before deciding how to proceed.

"Racially charged evidence has no place in any courtroom, and this 
administration will not tolerate its presence," she said. "We remain committed 
to seeking justice for the victims of Duane Buck's heinous criminal acts and 
will do so without what Chief Justice Roberts described as the 'strain of 
racial prejudice' present at the 1997 trial in which Buck was convicted."

[see: http://www.ca5.uscourts.gov/opinions/pub/14/14-70030-CV0.pdf]

(source: Houston Chronicle)






VIRGINIA----impending execution

3 Reasons Why Virginia May Execute an Innocent Man


In 2006, a jury convicted Ivan Teleguz of hiring someone to kill Stephanie 
Sipe, his ex-girlfriend and the mother of his child. Now, more than a decade 
later, Virginia is scheduled to execute Teleguz on April 25, 2017, and there is 
substantial evidence suggesting that Teleguz is innocent.

How is that possible in the United States - the land of the free, where a poor 
person is entitled to legal counsel and a criminal defendant has numerous 
chances to be heard in court? Actually, it happens with some ease, and in part, 
it happens because of conscious choices we have made about our legal system. 
There are at least 3 reasons for this counter-intuitive reality.

1. Prosecutors, Not Judges or Juries, Resolve Most Criminal Cases in America

When most people think of criminal cases, they have visions of Atticus Finch 
and dramatic closing arguments before juries. In fact, 97 % of federal cases 
and 94 % of state cases are resolved through plea-bargaining. The prosecutor 
determines what charges to bring against a defendant, offers him a lesser 
sentence if he accepts the deal in lieu of a trial, and often plays one 
defendant off of another in the process. In most cases, criminal defendants 
accept a plea rather than insisting upon their day in court because the penalty 
and risk associated with going to trial is simply too high.

Teleguz's case demonstrates this phenomenon well. There was no physical 
evidence connecting him to the murder of Ms. Sipe; the prosecution's case was 
based on the testimony of three witnesses. Since his trial, 2 of those 
witnesses have recanted their testimony and have admitted that they lied when 
they implicated Teleguz in exchange for favorable treatment from the 
government. The Commonwealth repeatedly told the 3rd witness, Ms. Sipe's actual 
killer, that he would face the death penalty unless he "cooperated" with them 
by agreeing to testify against Teleguz in Ms. Sipe's murder and sticking to 
that story. Not surprisingly, he did just that and he is serving out a life 
sentence while Teleguz faces imminent death.

2. The Myth of the Right to Counsel

Speaking of Atticus Finch, why didn't Teleguz's lawyer prevent this outcome? 
Indeed, the United States Supreme Court has held time and again that "[t]he 
right of one charged with crime to counsel may not be deemed fundamental and 
essential to fair trials in some countries, but it is in ours."[1] There is a 
huge divide, though, between the right and the reality. Like Teleguz, 80 % of 
criminal defendants are poor, and they are entitled to a lawyer at the state's 
expense. Those lawyers are overworked, underpaid and operate without anything 
close to what the government has in the way of investigative and expert 
resources. For these reasons, while in office, Attorney General Eric Holder 
regularly described indigent defense systems nationwide as "unjust," "morally 
untenable," "economically unsustainable," and "unworthy of a legal system that 
stands as an example to all the world."

Here, too, Teleguz suffered at the hands of a broken system. Counsel in death 
penalty cases are held to a heightened standard of performance, and as part of 
that standard, they are expected to conduct extensive, careful investigation to 
prepare for the sentencing phase of the trial. Teleguz's trial counsel was far 
from diligent, and as a result, the jury heard evidence that Teleguz was 
involved in another arranged murder. This evidence persuaded the jury to vote 
for the death penalty. Here's the wrinkle: not only was Teleguz not involved in 
such a crime, the crime never happened. Years after his trial, that fact came 
to light, and the government has now acknowledged that the alleged prior murder 
did not happen. But the jury verdict stands.

3. Not So Appealing Appeals Process

Which brings us to the shortcomings of our appellate process. Surely, the 
multi-layered appellate process would ferret out an error of this magnitude and 
provide a remedy? Not necessarily. In 1996, Congress passed the Antiterrorism 
and Effective Death Penalty Act ("AEDPA") and in the process "gutted the 
federal writ of habeas corpus, which a federal court can use to order the 
release of someone wrongly imprisoned." Today, the American appellate process 
is an intricate web of procedural rules, and, in fact, "we have purposefully 
designed our system of appellate review to examine almost everything but 
factual guilt or innocence."[2]

That might be defensible if we could be confident in the accuracy of our 
criminal justice system, but we can't be. Since 1989, there have been more than 
2,000 exonerations in the United States. In 2015 alone, 58 people were 
exonerated of homicide convictions. Like many of those individuals, Teleguz has 
consistently maintained his innocence. Today there is new evidence to support 
that claim that no court has fully examined.

In the next few days, Governor Terry McAuliffe can't do much about 
prosecutorial overreach, problems with indigent defense, and the complex 
appellate process. But he can recognize that, because of these systemic 
failures, there is substantial doubt about Teleguz's guilt. Governor McAuliffe 
should grant clemency and stop Teleguz's execution.

[1] Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

[2] Richard A. Rosen, Innocence and Death, 82 N.C. L. Rev. 61, 75 (2003).

(source: Cara H. Drinan, Contributor Law Professor at the Catholic University 
of America in Washington D.C.; juvenile justice advocate----Huffington Post)

**********************

Gov. McAuliffe should grant clemency for Ivan Teleguz


On April 25, Virginia will put Ivan Teleguz to death unless Gov. Terry 
McAuliffe intervenes. He has good reasons to.

Teleguz was convicted of hiring Michael Hetrick to kill Teleguz's 
ex-girlfriend, Stephanie Sipe, in 2001, allegedly because he was angry at 
having to pay child support. Last month, a unanimous 3-judge panel of the 4th 
Circuit Court of Appeals refused to stay the execution. But that decision dealt 
with purely procedural matters. The court did not get into any of the new 
factual questions that have surfaced.

Those factual issues have raised concerns not just among the usual death 
penalty activists, clergy and others categorically opposed to capital 
punishment, but also among others whose stance is less predictable.

The other day a group of prominent state and national conservatives wrote a 
letter to McAuliffe suggesting Teleguz "may have been wrongly convicted." The 
signatories include Richard Viguerie, the grandmaster of direct-mail 
fundraising; Brent Bozell, founder of the Media Research Center; former 
Virginia Attorney General Mark Earley; former Republican Party of Virginia 
executive director Shaun Kenney; John Kramer of the Institute for Justice; 
Chris Braunlich, vice president of the Thomas Jefferson Institute for Public 
Policy; and numerous others.

The case against Teleguz, they write, "relied almost entirely on dubious 
testimony from 3 men. One was the confessed killer Hetrick, who had incentive 
to lie, since he received a deal sparing him from the death penalty in exchange 
for his testimony against Teleguz. ...The other t2 witnesses later admitted 
that they lied in court and swore under oath that Teleguz was not involved in 
Sipe's murder. They confessed to giving false testimony at trial because of 
threats from the prosecutor and promises she made to lessen the severity of 
their sentences."

Virginia's record in criminal justice cases is hardly unblemished. The 
commonwealth nearly executed Earl Washington, who later proved to be innocent. 
Others who endured lengthy prison sentences for crimes they did not commit 
include Thomas Haynesworth and Keith Allen Harward. They are surely not the 
only ones.

Indeed, a study published by the National Academy of Sciences suggests the rate 
of false conviction in death penalty cases stands around 4 %. For a state such 
as Virginia, which trails only Texas in the number of people it has executed, 
that should be an alarming datum.

Granted, not every case of claimed innocence bears out. Courts actually 
reversed the conviction and death sentence of Justin Wolfe, who claimed for 15 
years that he had not murdered the son of a Secret Service agent. Last year the 
prosecution was vindicated when Wolfe confessed that he really had committed 
the murder.

Fortunately for McAuliffe, he does not have to decide whether Teleguz is guilty 
or not. He merely has to decide whether new information casts doubt on the 
conviction. If it does, then the wise course entails commuting Teleguz's 
sentence to life without the possibility of parole.

Time and further investigation will tell whether the claims on Teleguz's behalf 
hold merit. If they don't, then Teleguz can spend the rest of his natural life 
rotting away in a cell, and justice still will be served. But if they do, and 
the state learns of it only after killing an innocent man, Virginia will have 
committed a great crime. Given those 2 alternatives, the governor seems to face 
an easy choice.

(source: Editorial, Richmond Times-Dispatch)






FLORIDA:

Let the legal battle begin


My limited sympathy for Orlando-area prosecutor Aramis Ayala was sorely tested 
last week when her lawyers filed two powerhouse lawsuits against Gov. Rick 
Scott.

The lawsuits themselves don't trouble me. The courts will settle this power 
struggle, and these lawsuits were needed get them involved.

The legal issues don't trouble me, either. I look forward to a vigorous debate 
- and eventual rulings from a federal judge and the Florida Supreme Court - 
concerning the governor's authority to pull Ayala off multiple murder cases.

Ayala says Scott violated the state Constitution and overstepped his bounds.

Scott says he acted in accordance with Florida law and took action to ensure 
full justice in Ayala's territory.

We shall see how it all turns out.

My sympathy was strained because of a few statements that Ayala's legal team 
included in the suits.

As you may recall, the governor took Ayala off the case of an accused cop 
killer when she announced that she would decline to seek the death penalty in 
any case that comes before her. Scott later yanked her off 22 more murder 
cases.

In her place he appointed our own state attorney, Brad King.

"Upon information and belief, Governor Scott chose King as Ayala's replacement 
because of King's well-known public position in support of the death penalty," 
the federal suit says.

Upon information and belief, I find that statement incorrect.

Sure, King supports appropriate use of the death penalty. So does every other 
state attorney in Florida.

After Ayala announced that she wouldn't seek capital punishment against accused 
cop killer Markeith Loyd, every other elected prosecutor in the state signed 
onto a joint statement saying they would continue to seek the death penalty 
where appropriate.

King is a veteran prosecutor (first elected in 1988 and serving ever since) and 
his circuit is close in proximity to Ayala's. It makes perfect sense to appoint 
him to this task.

Is King's position on the death penalty public? Of course. So what?

King dutifully took the governor's assignments in Ayala's circuit, the 9th, 
which covers Orlando and Osceola counties. In the case of the accused cop 
killer, King has filed notice that he will seek the death penalty.

I have no doubt that he did so for one reason only: because he thinks it's the 
legally appropriate thing to do after considering all the facts, circumstances 
and relevant case law.

I have followed King's actions throughout my newspaper career, which began just 
a little after he was first elected. The man is no one's puppet. Ayala's legal 
team can, and should, make its case without suggesting otherwise.

Elsewhere in the suit, Ayala's legal team portrays her as misunderstood.

The governor and the press have said that Ayala will not seek capital 
punishment in any case that comes before her. But in her lawsuits, Ayala said 
she told the press that there actually is a chance that she would seek the 
death penalty in especially egregious cases.

Is everyone getting this wrong?

Not exactly. Ayala said she would revisit her position if the death penalty 
process didn't drag out for years and years, wasn't so costly, and wasn't so 
improperly administered.

In other words, if everything about the death penalty changed, then she would 
change her approach.

But declining to seek the death penalty under the current state of affairs is 
basically declining to seek it at all. It's a word game.

I oppose capital punishment on moral grounds. Period. But I believe Ayala, and 
all Florida state attorneys, should consider seeking capital punishment in its 
current form when appropriate. That is clearly what Florida law calls for.

As for Scott: State law allows him to remove a prosecutor from a case "for any 
good and sufficient reason." Ayala says the state Constitution trumps that law, 
and we'll see if the courts agree.

But even if Scott was legally correct, he overstepped his bounds by pushing 
aside an elected official. Ayala has broken no law. She is not incapacitated 
and has no actionable conflict of interest. If Scott and others don't like the 
way Ayala is running her office then they should support a challenger in the 
next election.

I maintain by limited sympathy for Ayala. But if would be easier if her legal 
team stuck to its constitutional case, which is intriguing, and stopped trying 
to portray Ayala as a misunderstood public servant being preyed upon by a 
blood-thirsty governor and his dupe in Ocala.

(source: Column; Jim Ross----The Ocala Star Banner)

**********************

Man accused of killing teen girl due in court amid death penalty 
debate----Sanel Saint Simon charged in death of Alexandria Cherry

A man accused of killing a 16-year-old girl and dumping her body in the woods 
is expected in court Thursday amid the death penalty debate surrounding 
Orange-Osceola State Attorney Aramis Ayala.

Sanel Saint Simon was charged with murder in the death of his girlfriend's 
daughter, Alexandria Cherry, in 2014.

His case is 1 of nearly 2 dozen recently reassigned by Gov. Rick Scott after 
Ayala revealed that she was not going to seek the death penalty in any of the 
cases her office was handling.

State Attorney Brad King will now prosecute the case.

(source: clickorlando.com)






ALABAMA:

Alabama's death penalty is still far from fair


In one of her first acts as governor, Kay Ivey signed a bill to get rid of 
Alabama's judicial override law, the rule that formerly allowed judges in 
Alabama to go against the recommendation of a jury and impose the death penalty 
on defendants in capital murder cases. The change was long overdue.

Alabama was the only state in the nation that still had judicial override on 
its books by the time Ivey got a chance to erase it. It likely would have been 
stricken down by the Supreme Court eventually, just as Florida's version was 
last year. Alabama courts were unwilling to declare the law unconstitutional, 
so this bill was much needed. It is a great step forward for the state, but 
there is still work that needs to be done on Alabama's death penalty scheme.

While Alabama is no longer alone in having judicial override, it is still the 
only state where jury decisions do not need to be unanimous to sentence someone 
to death. Only 10 of 12 jurors need to be in agreement. There is no compelling 
reason why this should be the case. Some say it is to ensure that a single 
juror isn't able to "spoil the pot" and show mercy to someone by being 
unwilling to put them on death row. If someone is truly evil, if what they've 
done is so heinous that they deserve to be put to death, it seems likely that 
everyone on a jury would reach the same conclusion and vote accordingly. But if 
1 or 2 jurors have doubts then surely there is no reason to allow that person 
to die. It's not as if the defendant will be cleared of all charges and allowed 
to walk free; for capital murder cases in Alabama there are 2 options, the 
death penalty, or life without parole.

The decision to put someone to death is not the same as other decisions in our 
criminal justice system. It's not about time or rehabilitation, it's about 
justice, vengeance and closure. The people who have faced and will face a jury 
that has the power to end their life have done horrible things, but just 
because they have killed does not immediately justify their own death at the 
hands of the state. We as a society hold human life as the most sacred thing. 
If a group of us is to decide the put someone to death there should be no 
doubt, no disagreement. There should be every opportunity to deliberate and 
give us pause before we make a decision that we can't take back. Allowing a 
non-unanimous decision gets rid of some our capacity for mercy and leaves the 
door open for groupthink to overpower individual voices.

The new law also does not reverse the sentences of the people who are on death 
row due to a judicial override.

Getting rid of judicial override was a big move in the right direction. 
Hopefully this opens up the discussion to other things in the Alabama legal 
system that need to be updated and changed.

(source: Mason Estevez is a junior majoring in economics and journalism----The 
(Univ. Alabama) Crimnson White)

*******************

Score one for juries


Alabama is currently the only state which allows judges to impose a death 
sentence over the decision of the jury. This is changing, as the legislature 
has passed a bill ending Alabama's death penalty judicial override. This change 
is consistent with the role juries have historically played in protecting 
individual freedom.

Death penalty cases proceed in two phases. First, evidence is presented and the 
jury determines guilt. A guilty verdict on the death penalty eligible offense 
triggers the penalty phase, where the jury decides on death or life in prison. 
Alabama judges have been able to impose the death penalty when the jury decided 
on a life sentence, or a life sentence instead of death. Overrides have imposed 
a death sentence about 10 times more often than they have spared a defendant.

What is wrong with judges overriding the jury? After all, judges normally 
impose sentences after a conviction. Judges could well apply the death penalty 
more consistently. Jurors typically will only know the facts of the case they 
hear, and may be unaware of sentences handed down in similar cases. I see 2 
problems with the judicial override, one related to judges' incentives and the 
other related to juries' role in limiting government.

Alabama elects judges, so the judges with override power must run for 
reelection. In principle elections make judges (and other government officials) 
do what we want, but reality is more nuanced. Elections are decided by the 
citizens who vote, and voters are never perfectly informed. Most of us value 
justice and dislike crime, so we like judges who are tough on crime without 
violating the law. Overrides to impose the death penalty allow judges to show 
how tough they are on criminals.

Whether an override furthers justice is a harder question. The citizens on the 
jury have heard all the evidence and evaluated the credibility of all the 
witnesses. Their informed, considered decision was for a life sentence. That a 
judge imposed the death penalty in a murder case will influence far more votes 
than the subtleties relevant to know if this sentence served justice.

Judicial override undermines the jury's protection against government 
overreach. The right to a trial by a jury of one's peers emerged in England to 
limit the power of kings. English common law holds that the law prescribes 
rules people should follow to live in peace and exists prior to the 
establishment of government. Common law is consistent with the view that 
governments exist to serve citizens. America's founders brought this common 
law, limited government heritage to our shores.

Limited government emerged in England against a historical backdrop of absolute 
monarchs. The kings wanted their word to be law, while the common law regulates 
the affairs of free people. The kings wanted to use law to control people, 
while free Englishmen were only supposed to be punished for criminal actions. 
This created a tension.

The right to trial by a jury limits the government. The king might want to jail 
or execute a political opponent. But before punishment can be imposed, a jury 
of other citizens must be convinced with evidence of a crime. The principle of 
double jeopardy is closely tied to trial by jury, since this prevents 
presenting the evidence to juries until one delivers the desired guilty 
verdict.

Many luminaries have recognized this crucial role of juries. English jurist 
William Blackstone called juries "the grand bulwark of all liberty." Thomas 
Jefferson saw juries "as the only anchor ever imagined by man, by which a 
government can be held to the principles of its constitution." James Madison, 
the Father of the U.S. Constitution, thought that the jury trial was its 
grandest measure protecting freedom.

Constitutional rules help ensure that governments serve the interests of the 
people. Allowing only juries to determine criminal punishment is a vital 
constitutional rule. The question of capital punishment deeply divides 
Americans. If this ultimate punishment is ever justified, we the people should 
have the final say, and so eliminating Alabama's judicial death penalty 
override is a change for the better.

(source: Opinion; Daniel Sutter is the Charles G. Koch Professor of Economics 
with the Manuel H. Johnson Center for Political Economy at Troy University and 
host of Econversations on TrojanVision. The opinions expressed in this column 
are the author's and do not necessarily reflect the views of Troy 
University----Alabama Today)






MISSISSIPPI:

Miss. high Court: Execution plans can be kept secret


Mississippi does not have to publicly disclose details of how it carries out 
executions, the state's highest court ruled Thursday.

In a 7-2 decision, the Mississippi Supreme Court dismissed a lawsuit by the 
Roderick & Solange MacArthur Justice Center that argued the state's corrections 
department hadn't disclosed enough information in response to a 2014 public 
records request.

A chancery judge had ordered more information disclosed, but the state 
appealed. Last year, while the appeal was still pending, legislators changed 
the law, joining states nationwide in shielding drug purchases and other 
execution methods from public disclosure. The state argues that releasing names 
of drug suppliers could allow death penalty opponents to terminate the supply 
using public pressure. States have had increasing trouble obtaining execution 
drugs because some pharmaceutical makers don't want their medicines used for 
that purpose.

MacArthur Center lawyer Jim Craig disputes that disclosure is a threat, saying 
it's important to have a full accounting of where Mississippi is getting its 
death penalty drugs and how it plans to use them. "There's no threat against 
any of these pharmacies," Craig said Thursday. "There's no economic threat; 
there's no physical threat. And across the country this is just being used as a 
dodge to prevent people from knowing where these dollars are going."

Presiding Supreme Court Justice Michael Randolph wrote in Thursday's decision 
that the judges must apply the new law to the pre-existing dispute, because 
lawmakers didn't carve out an exception for ongoing requests and lawsuits.

"This court chooses to follow the law as set forth by the Legislature," 
Randolph wrote.

Craig said the decision could encourage agencies to run out the clock on public 
record requests. "It's disturbing that a state agency can delay responding to a 
records request for public records for a period of years, while they seek to 
change the statute to block production of the records requested," he said.

Associated Justice Leslie King, in his dissent, said the court???s delay in 
deciding the case undermined Craig.

"This court, by the dilatory manner in which it has disposed of this case, has 
either wittingly or unwittingly allowed its actions to be impacted by 
legislative actions," King wrote.

He said the court should have allowed Craig's case to proceed as if the law 
hadn't changed.

(source: Associated Press)






OHIO:

No plans to change procedures after Youngstown murder suspect jumped to death, 
sheriff says


The Mahoning County Sheriff's Office currently has no plans to change its 
prisoner transport procedures after a man accused of rape and 3 killings jumped 
to his death from a courthouse balcony.

Robert Seman Jr., 48, was not shackled when he jumped from the 4th floor 
balcony Monday at Mahoning County Common Pleas Court. He was set to stand trial 
for setting a fire that killed 2 grandparents and a 10-year-old girl he was 
accused of raping.

The Mahoning County Sheriff's Office typically shackles prisoners until they 
enter the courtroom, Sheriff Jerry Greene said Thursday in a phone interview. 
But a court order prevented deputies from handcuffing Seman, he said.

The Aug. 8, 2015 court order allowed Seman to wear civilian clothing throughout 
the proceedings, court records show. The defense argued that jurors could be 
influenced if they saw Seman in jail clothes or handcuffs, Greene said.

Surveillance video released by the Mahoning County Sheriff's Office shows Seman 
walking down a hallway before he jumps. 2 Mahoning County Sheriff's Deputies 
were walking to his left, on the other side of the hallway from the balcony.

Judge Maureen Sweeney ruled Wednesday that another defendant who faces the 
death penalty must be in cuffs on his way to and from the courtroom. The order 
makes no mention of Seman's death, according to The Youngstown Vindicator.

"The judge's order [in the other death penalty case] is consistent with the way 
we normally do things," Greene said Thursday. "The Seman case was actually 
inconsistent with our normal procedures."

Greene declined to comment on whether the sheriff's office could enact new 
procedures that could have prevented Monday's incident.

Seman faced the death penalty if he'd been convicted of killing Corrine Gump, 
10; William Schmidt, 63; and Judith Schmidt, 61. The three died March 30, 2015, 
in a fire at a home in Youngstown.

Prosecutors said Seman set fire to the home hours before he was scheduled to 
stand trial in a case that accused him of raping the 10-year-old girl.

(source: cleveland.com)

***********************

Ohio Lethal Injection Drug Challenge Can Proceed


3 death row inmates can continue challenging Ohio's death penalty protocol, 
after a ruling by the U.S. Court of Appeals for the Sixth Circuit April 6 ( 
Fears v. Otte , 2017 BL 113257, 6th Cir., No. 17-3076, 4/6/17 ).

They argued that Ohio's use of midazolam - a sedative - in executing prisoners 
by lethal injection is unconstitutional because the drug still allows a person 
to feel excruciating pain, the court said.

The court upheld the district court's grant of a preliminary injunction 
preventing use of the protocol, in a decision by Judge Karen Nelson Moore.

The district court didn't abuse its discretion in finding that the inmates were 
likely to succeed on the merits of their claim that the execution protocol 
violates the U.S. Constitution's prohibition of cruel and unusual punishment, 
the Sixth Circuit said.

That claim required showing that the "protocol created a substantial risk of 
pain" and that the inmates "identified a known and available alternative" 
execution method, the appeals court said.

In ruling for the inmates, the district court relied on expert and eyewitness 
testimony about recent executions that used the protocol and indications that 
those executed may have felt pain, the court said.

Further, the U.S. Supreme Court has offered only "limited guidance" on what 
constitutes an "available alternative," and the district court relied on a 
reasonable definition provided by the inmates, the Sixth Circuit said.

Under that definition, an alternative method is "available" if there is a 
"reasonable possibility" it can be used, the court said.

Judge Jane Branstetter Stranch joined the decision.

Dissenting, Judge Raymond M. Kethledge said the majority improperly failed to 
consider whether the protocol was "sure or very likely" to result in serious 
pain.

The Ohio attorney general's office argued for the state. The federal public 
defender's office for the Southern District of Ohio argued for the inmates.

(source: Bloomberg News)