COLUMBUS — Ohio Gov. Mike DeWine already has delayed one execution. Now a federal judge appears to be calling on him to hold off on more so that he can wrap up a 15-year-old suit over Ohio’s death penalty protocol.
DeWine last month delayed Warren Keith Henness’s Feb. 13 execution because of issues with Ohio’s death penalty protocol that were raised by Magistrate Judge Michael Merz, and directed the state Department of Correction and Rehabilitation to develop a new protocol. Last week, DeWine stated the logical extension of last month’s move, saying there wouldn’t be any executions in Ohio until the state comes up with a new drug protocol that is cleared by the courts.
Cleveland Jackson, of Lima, is the next up for execution. Jackson was convicted for the 2002 murder of 17-year-old Leneshia Williams and 3-year-old Jayla Grant in Lima, as part of a robbery of a home on Eureka Street on Jan. 3, 2002. He was slated to die last year, but former Gov. John Kasich delayed the proceeding until May 29.
In an order scheduling a phone conference for Tuesday morning, Merz praised DeWine’s decisions.
“The court is deeply gratified by the governor’s expression of trust in this court’s judgment regarding the current protocol. The court fully expects that the governor will do whatever is needed legally to keep the public commitment he has made, the important first step being the reprieve of Warren Henness,” Merz, who sits in Dayton, wrote.
DeWine hasn’t said anything, however, about five others slated to executed this year.
DeWine’s spokesman, Dan Tierney, said the governor declined comment on Merz’s order.
Merz summarized the testimony of medical experts in a January opinion that likened Ohio’s three-drug protocol to “waterboarding” that “would feel as though fire was being poured” into a prisoner’s veins.
David Stebbins, a federal public defender who has been involved in the litigation, says that it’s been rushed since the suit was filed in 2004. With each execution, a new prisoner has moved to the front of the line, speeding the need to seek a preliminary injunction, he said.
The proceedings “don’t permit full development factually you would get in a full trial,” Stebbins said. “Because of the execution schedule we have in Ohio, there’s never been time for that.”
In his order last week, Merz wrote that so long as executions are scheduled for the coming months, his court must proceed as if they’re going to happen.
“The governor’s announcement embodies excellent public policy,” Merz wrote. “The burden is on the parties to this case and the court to devise a means of carrying out that policy, of designing the future course of this consolidated case so as to maximize judicial economy (e.g., by not litigating over matters that are practically moot), allowing (the state) to construct a revised protocol, and then adjudicating its constitutionality in a way that permits deliberate consideration, and not last-minute temporary restraining order proceedings.”
Stebbins said Merz seemed to be speaking to DeWine with the order.
“Judge Merz certainly seems to be pressing to resolve all of this,” he said.