From [HERE] The Sixth Circuit denied habeas relief to a Black death-row inmate finding that a second execution attempt would not constitute a cruel and unusual punishment under the Eighth Amendment. On September 15, 2009, technicians attempted over the course of two hours to execute Broom. Even with the prisoner’s assistance, the state could not complete the lethal injection process, unable to find a suitable vein. The clear signs of pain exhibited by Mr. Broom during this process starkly illustrate the inherent cruelty of all executions.

Shortly after this failed execution attempt Broom filed a Section 1983 lawsuit in federal court, claiming that any attempt to execute him again would violate either the Eighth Amendment’s prohibition on cruel and unusual punishments or the Fifth Amendment’s bar on “double jeopardy.” See U.S. Const., amend. V (“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]”).

Dismissing his 8th Amendment claim In its ruling by Judges Alice M. Batchelder, Karen Nelson Moore and Julia Smith Gibbons [all white, pictured above], the court stated,

“the Constitution does not prohibit a state from executing a prisoner after having already tried—and failed—to execute that prisoner once, so long as the state (1) did not intentionally, or maliciously, inflict unnecessary pain during the first, failed execution, and (2) will not inflict unnecessary pain during the second execution, beyond that inherent in the method of execution itself. “The court agreed with the Ohio Supreme Court previous decision where it held that (1) “[t]he state’s intention in carrying out the execution [was] not to cause unnecessary physical pain or psychological harm,” and (2) Broom is unlikely to suffer severe pain during his second execution—or to endure yet another failed execution—because the state has since amended its execution protocols (with the federal courts’ approval), and has executed numerous prisoners under those revamped protocols. Broom, 51 N.E.3d at 631–32. And thus, the court concluded, the Eighth Amendment did not prohibit Ohio from attempting to execute Broom a second time.”

Romell Broom has been on death row for nearly a quarter of a century. He was sentenced to death in 1985 for the rape and murder of 14-year-old Tryna Middleton in September 1984. After the death sentence was upheld on appeal, Broom sought to join a lawsuit challenging the constitutionality of Ohio’s lethal injection process. However, the courts dismissed his attempt, ruling that the challenge was time-barred and should have been made earlier.

Romell Broom’s execution was set for 15 September 2009 at 10am. The execution was delayed for several hours as a final appeal to the federal courts was awaited. Between 1 and 2pm, after the courts had lifted the stay of execution, the lethal injection team began preparations for the execution. After an hour of the team trying to find a suitable vein in his arms, Romell Broom tried to help them. According to Associated Press, "When his help made no difference, he turned onto his back and covered his face with both hands. His torso heaved up and down and his feet shook. He wiped his eyes and was handed a roll of toilet paper, which he used to wipe his brow."

Romell Broom’s lawyer was in the attorney waiting room. When she questioned the delay she was taken to a room where she could watch the procedure on closed-circuit television. She has said that "it was perfectly apparent that the execution was going very wrong”, and that Romell Broom was “wincing in pain” as the execution team held him down and tried to find a vein. At one point, she said, “they really hurt him”, and he “grimaced in pain”. She contacted her co-counsel to tell him what was happening – that the execution team had been trying for two hours to find a vein and had apparently now taken a "break." The co-counsel sent a letter by fax and email to the state Governor and the Chief Justice of the Ohio Supreme Court, urging that the execution be stopped. His letter to the court pointed out that in the ongoing legal challenge to Ohio’s lethal injection protocol, the state’s position had been that "the medical members of the execution team are skilled at obtaining IV access."

Governor Strickland, who had earlier denied Bloom clemency, issued a one-week reprieve. The warrant reads, "Difficulties in administering the execution protocol necessitate a temporary reprieve to allow the Department [of corrections] to recommend appropriate next steps to me...The Department should carry out Mr Broom’s sentence [on 22 September] unless further reprieve or clemency is granted." On 17 September, in relation to the Ohio lethal injection lawsuit, a federal judge ordered that by 21 September a statement be taken from Romell Broom about the execution attempt, and that the state disclose relevant documents by 28 September. [MORE]