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Cooey v. Taft

December 6, 2006


The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Mark R. Abel


This matter is before the Court for consideration of a December 5, 2006 motion for reconsideration filed by intervenor John G. Spirko, Jr. (Doc. # 143.) Previously, in a November 22, 2006 Opinion and Order, this Court permitted Spirko to intervene in this litigation but denied a stay of his scheduled execution. (Doc. # 137.)

Spirko bases his motion for reconsideration on the fact that after this Court denied his motion for a preliminary injunction (Doc. #120), which would have stayed his scheduled execution, a panel of the Sixth Circuit reversed this Court and granted a stay in regard to intervenor Jerome Henderson. This Court's reasoning in regard to Henderson and Spirko was essentially identical: that because the Sixth Circuit has reversed without explanation a stay granted to intervenor Jeffrey Lundgren, this Court was mandated to deny stays in analogous situations. (Docs. # 124, 137.) Thus, Spirko posits, the Henderson appellate decision should control over the Lundgren appellate decision.

Before addressing directly the effect of the Henderson grant of a stay on the Lundgren denial of a stay, this Court must place the issue in its proper context. This is because the Sixth Circuit has placed its lower courts generally, and this Court specifically, in an unusual position that ultimately dictates the disposition of the reconsideration motion.

The captioned case involves a constitutional challenge to Ohio's lethal injection protocol and has been before this Court since 2004. The case has been stayed while an appeal involving the original plaintiff, Richard Cooey, is pending before the Sixth Circuit. During this stay, a number of death row inmates have sought to intervene in this litigation. They have succeeded in intervening, although the specific circumstances of each intervenor have dictated whether the intervenor could obtain a stay of his scheduled execution.

The Sixth Circuit has addressed some of the issues involved in this litigation only to a limited degree. For example, the appellate court addressed many of the same issues in decisions involving Sedley Alley, who had brought a similar 42 U.S.C. § 1983 challenge to Tennessee's lethal injection protocol earlier this year. See Alley v. Little, 452 F.3d 621 (6th Cir. 2006); Alley v. Little, 186 Fed. Appx. 604 (6th Cir. 2006); Alley v. Little, 447 F.3d 976 (6th Cir. 2006); Alley v. Little, 181 Fed. Appx. 509 (6th Cir. 2006).

This Court can draw little guidance from the Alley decisions, however, beyond their reiterating the same standards that this Court has endeavored to apply in considering stay requests; the core issue in Alley's case--the protocol's constitutionality--was never ultimately addressed. Moreover, because Alley's case was predicated on limited and often apparently different evidence than that involved in the present litigation (in which there has been some limited development of the evidence generally favoring the intervenors), Alley's failure to demonstrate a likelihood of success on the merits has provided no dispositive rule for addressing the numerous intervenors' stay requests with which this Court has dealt.

More recent developments have not clarified the state of the law on the issues involved. In an October 17, 2006 Opinion and Order, this Court permitted Jeffrey Lundgren to intervene in this action; the Court also stayed his execution. (Doc. # 92.) Defendants appealed that decision on October 18, 2006. (Doc. # 94.) In an October 23, 2006 Order, the Sixth Circuit declined en banc consideration of that appeal and, apparently pursuant to an internal operating rule of the appellate court, the appeal was assigned to the panel that had considered Lundgren's habeas appeal. (Doc. # 102.) Later that same day, the Sixth Circuit recognized that the appeal involving original plaintiff Cooey existed and issued a second order, which stated in part:

In order to insure the consistent, uniform and fair application of federal law in all such lethal injection cases before the Court, and in deference to the first panel heretofore assigned to decide the issue, we transfer this case to the aforementioned panel, subject to that panel's acceptance of the case for decision along with other similar cases raising the constitutionality of Ohio's method of imposing capital punishment by lethal injection. It would be grossly unfair for different panels of this Court to reach opposite conclusions on the issue of the constitutionality of Ohio's method of lethal injection so that some capital defendants are put to death by lethal injection while other similarly situated are spared.

(Doc. # 107, at 2.) The Sixth Circuit therefore transferred the case to the Cooey panel.

Without providing an explanation of any sort, a majority of the Cooey-Lundgren panel reversed this Court's decision in a third October 23, 2006 Order. (Doc. # 123.) Lacking guidance, this Court was left only with a conclusion: that this Court had erred in granting a stay of execution. Because the Sixth Circuit panel majority did not explain how this Court erred, this Court and any other court in this circuit that would have to address the issue is left in the dark as to how to avoid error in future cases. This was an unfortunate development, because while a lack of clarity in the law in any case is troubling (even if at times unavoidable), a lack of clarity when the death penalty is involved is of the utmost concern.

What is clear is that our system of law provides that an appellate court trumps a district court. Accordingly, given the Lundgren appellate decision, this Court was constrained to deny intervenors Jerome Henderson and John Spirko stays of their executions without being able to provide an explanation. (Docs. # 124, 137.)

Henderson appealed this Court's decision on his preliminary injunction stay request on November 28, 2006. (Doc. # 141.) In a December 1, 2006 Order, a Sixth Circuit panel reversed this Court and granted a stay of Henderson's execution. (Doc. ...

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