Getting Blood From A Stone-Cold Killer

There's a great deal of talk today on a decision by the Sixth Circuit U.S. Court of Appeals to postpone Thursday's scheduled execution of Lawrence Reynolds Jr. He's the Cuyahoga Falls man, otherwise known as inmate #A296121, on Death Row for the New Year's Day 1994 murder of neighbor Loretta Foster.

The appeals court, on a 2-1 ruling, decided more time was needed to give Reynolds' argument the botched execution of fellow Death Row inmate Romell Broom -- because of a two-hour try to find a usable vein to pump the lethal cocktail into Broom's body -- posed enough question to provide a delay. Summit County's prosecutors today appeared resigned to the delay even as the Ohio Attorney General's office was mounting an appeal to the U.S. Supreme Court.

Having witnessed nearly a half-dozen executions by lethal injection, I can attest that most appeared to be handled in a professional manner with the necessary injection of a needle into the condemned inmate accomplished with little apparent pain or discomfort. This clearly wasn't the case with Broom, which triggered Governor Strickland to order a temporary halt to Broom's execution. That decision and case now spark the latest strategy used by Reynolds to avoid a trip to the execution chamber in Lucasville, his last measure of defense as arguments for clemency failed.

This particular process hits home for thousands of people everyday; anyone who ever had to push back a sleeve for a blood test has experienced roughly the same kind of medical procedure used in administering execution by lethal injection. For the most part, it is a remarkably successful process; a report published in 2002 by a pair of Mayo Clinic researchers (found here on PubMed, the website of the U.S. National Library of Medicine and National Institutes of Health) reports the failure rate is remarkably low:

Of 833289 encounters, 829723 were successful. Phlebotomies were unsuccessful because patients were not fasting as directed (32.2%), phlebotomy orders were missing information (22.5%), patients specimens were difficult to draw (13.0%), patients left the collection area before specimens were collected (11.8%), patients were improperly prepared for reasons other than fasting (6.3%), patients presented at the wrong time (3.1%), or for other reasons (11.8%). Only 2153 specimens (0.3%) were unsuitable; these samples were hemolyzed (18.1%), of insufficient quantity (16.0%), clotted (13.4%), lost or not received in the laboratory (11.5%), inadequately labeled (5.8%), at variance with previous or expected results (4.8%), or unacceptable for other reasons (31.1%).

Pretty substantial numbers; more than 833,000 "encounters" and fewer than 2200, or 0.3%, were deemed "unsuitable." This report doesn't note, however, how many specimens were listed as successful despite being difficult to draw. To the arguments of lawyers for inmates Broom/Reynolds, the low number doesn't matter because the state has a duty to avoid cruel and unusual punishment. Critics can counter the activity is neither unusual -- it is performed thousands, if not millions of times, daily in hospitals, clinics and labs across the globe -- nor cruel if we are to consider those millions of individuals spiked with a needle everyday.

For the family and friends of Loretta Foster, none of this matters. They've waited for more than 15 years for justice. Their exasperation as what seems to be another last-minute straw grasped by a desperate killer is understandable. The question we asking ourselves is whether all of this is a new legal ploy twister in opposition to capital punishment or a bigger issue: can the state apply death in any form without being cruel, and how do we define cruel?

Cruel and Unusual

Richard Cooey has another date with the Death Chamber in Lucasville, but first the process takes precedence.

As we reported on AkronNewsNow this morning, the Ohio Supreme Court has set Tuesday, October 14, 2008 for Cooey's second trip from an Ohio Death Row to the Southern Ohio Correctional Institution in Lucasville (for the sake of brevity we'll call it a state prison). Back in 2004 Phil Trexler of the Akron Beacon Journal and I were among the local media covering the story, including serving as witnesses to the execution. It didn't happen after three different levels of federal judges -- a circuit judge in Cleveland, the Court of Appeals in Cincinnati and finally the U.S. Supreme Court in Washington, D.C. issued stay after stay. The final order came down with about an hour and 15 minutes to spare; if the nation's highest court had ordered the lethal injection to go ahead Cooey's last moments would have ended the day of legal wrangling and nearly 20 years waiting for his sentence to be carried out.

Both Phil and I had interviews with Cooey on Death Row, then at the state prison in Mansfield. You can listen to portions of the interview through this link; it was chilling then and still has an impact to hear this man who has spent more time on Death Row than as a free man. At the time he did not dispute his murders of Wendy Offredo and Dawn McCreery in the woods behind Rolling Acres Mall after a night of terrorizing the young women; he asked no forgiveness, neither from God nor his victims nor their families. He didn't even protest that the Death Penalty was too strict for his crime: he was appealing, he told me, because he could. Innocence or legal malpractice weren't the grounds: because someone else was challenging it would be enough.


It worked, if only to give him a four-year postponement of what the McCreery family has pushed for since the 1986 death of their daughter and her friend: final justice. But don't consider October 14th to be written in stone.

There's a new Governor in office, and while Bob Taft swiftly denied any clemency that decision will now rest with Ted Strickland. This Governor, with his background of working with inmates and his faith, has shown he's not a rubber-stamp for opponents of capital punishment. It is hard to imagine he will stray far from the sentence in this case, either. The inmate doesn't really dispute the facts nor the punishment; his lawyers cleverly argued the case should piggyback talk that lethal injection is cruel and unusual punishment, and that was enough to extend another reprieve. There will need to be another hearing to determine if Cooey is worthy of executive clemency, and appeals of other cases may still carry enough weight to trigger another round of federal appeals. If so, the families of the victims will have to continue the wait they've endured for 22 years; when taking a life, society owes it to the process to make sure the process is fully satisfied, but the core question is determining that satisfaction.

I find the argument on "cruel and unusual" a crock. Each day across this country there are millions of individuals who undergo the usual of injection -- for regular blood tests, while in the hospital, even part of a legal system that may need a blood sample for prove or disprove charges. Hardly unusual. If inserting a shunt into one's arm is unusual, ask the thousands who regularly walk into dialysis everyday for life-saving blood cleansing.

As to whether it is cruel? Very few, if any, of those getting stuck think it's a walk in the park. But in searching for a humane way to put animals down society has chosen an swift injection which put them to sleep. In the case of executing men and women who have committed the most heinous of crimes, the argument that being forced to go to sleep while another drug stops the breathing and beating of the heart (a six-minute process, on average by my observation as a witness to three other executions) is not cruel, it is humane.

The case of The People v Richard Wade Cooey has victims all around: Wendy and Dawn, their families and friends, strangers who worried about their daughter's safety because of the case, Cooey's adopted father, an Akron police officer who died of a broken heart. It is hard to imagine Cooey as a victim, especially in listening to his own words to draw the conclusion he doesn't even see himself as a victim but as someone caught who had an opportunity to use the system he despoiled to live another day.

There are plenty of cases involving the death penalty that cry out for time to appeal, time to reconsider, time to examine whether the process was righteous, fair and proper. To say no one innocent ever walked those final steps is incredibly naive, but this is not one of those cases.

Death Penalty, GOP Wars and The Don's War Chest

The verdict is in from the jury: life in prison for Cameron Williams, no parole for 30 years the recommendation after more than a full day of deliberations. Despite the yapping from the pundits following the Bobby Cutts, Jr. case the decision to levy the ultimate is something no juror takes as an easy decision. A prominent member of local media, I am told, served as a member of the jury and it will be interesting to note his thoughts on the process behind the closed doors of the jury room once some of the dust settles.

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There's a move afoot by Secretary of State Jennifer Brunner to put under lock and key her videotaped deposition in the ongoing fight over her decision to yank Alex Arshinkoff from the Summit County Board of Elections -- and deny the local GOP's choice as a successor, Brian Daley. Why? Shouldn't the voters who still have decisions to make in this ongoing saga get a more complete understanding of how she made her decisions, by what prompting, and with what evidence? The file on Arshinkoff ought to be displayed in public view as well so the people deciding his fate as chairman of the Summit County GOP -- those hundreds and hundreds of local Central Committee members -- gain a perspective on how their representative lost the post and why their choice to replace him didn't make the grade according to Brunner. Seeing her deposition and the tale told under oath may shed more light on whether charges of Democrat cronyism and intrigue between Akron Democrat bosses and the Statehouse hold water or are just hot air in a political fight to the death on the other side of the aisle.

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The pain in Mayor Plusquellic's keester -- besides this blogger and others who attract his ire from time to time -- has most consistently been the American Friends Service Committee, which today unveiled a report charging the Mayor's 2007 re-election effort set a record for ignoring the campaign spending "reforms" Akron voters clearly put on the books. Here's a spreadsheet from the AFSC -- you'll need Excel or Open Office Calc to read it -- of the folks with deep pockets the group charges exceeded the $300 limit. I asked AFSC's Greg Coleridge about his definition of "fundraising season", since the Mayor's supporters have split those hairs in the past by insisting there are two seasons: primary and general election:

"The original law (Subsection B) titled “Fundraising Season” says that candidates for Mayor and Council can only raise funds for an election or re-election from December 1 prior to a General Election to the Thursday preceding the General Election. That’s one season. The limits established by the law (Subsection D) were $300 for mayor and at-large council and $100 for ward council. We believe when you add these 2 together, a candidate can only raise $300 or $100 maximum from any stipulated source (i.e. person, PAC, party and campaign committee, but not company) since the “season” encompasses both the primary and general elections. Hope this is clearer than mud."

The Mayor's office was quick to weigh in -- after all, this is becoming a routine with every city election:

"Every time there’s a campaign, Mr. Coleridge sings the same tune. Our law director has said repeatedly that Akron’s Code of Ordinances specifies that the campaign contribution limit is $300 per person, per election. That means per primary and per general election. In 2007, I was a candidate in both. The U.S. District Court found that the ‘fundraising season’ was unconstitutional. Coleridge agreed and stipulated in that court that it was unconstitutional, yet he continues to misrepresent and whine about this after every election."

I've always believed there are two election seasons, so a check for $600 ought to be legal when covering the two periods. To be fair, any candidate running for Mayor should err on the side of caution and get two checks -- one for the primary, one for the general, each for $300 -- if they want to make that argument, but then Greg is right on the money in one aspect: this stuff is all clearer than mud, and a great example of what happens when politicians and lawyers write laws covering themselves. Should have had a bricklayer do it -- at least it would stand up.

Post updated 5:29pm with Plusquellic response

Ted's Death Row Test

I was struck by the depth of consideration Governor Ted Strickland gave John Spirko, the Death Row inmate who has big-city help in trying to overturn his execution sentence for the murder of western Ohio postmaster Betty Jane Mottinger in 1982.

I think it's important to make sure her name is included in the first paragraph of this story rather than as an afterthought.

Rather than rubber-stamping an expected politically correct call to give Spirko a pass the Governor fully explains just why it'll be life in prison for a killer rather than the needle.

“John Spirko was convicted, by a jury, of a heinous murder. At times, when he wasn’t denying having committed the murder, he appears to have admitted doing so. Ohio and federal trial, appellate and supreme courts reviewed his conviction and upheld it. Alibi claims and claims regarding evidentiary weaknesses, including more recently developed theories and interpretations of evidence, were considered by those courts and rejected. In addition, Governor Taft and I granted Mr. Spirko, collectively, seven reprieves to allow for the analysis of DNA related to the case. Once completed, these DNA tests neither exonerated Mr. Spirko nor implicated him or anyone else.

The Ohio Parole Board twice unanimously recommended against clemency for Mr. Spirko. Most recently, in 2005, six members of the Board recommended against clemency and three recommended that Mr. Spirko be allowed time to exhaust newly developed legal theories in the courts. Mr. Spirko was ultimately allowed that opportunity and his claims were rejected. Mr. Spirko’s claims that his own lies led to his conviction for an offense that he did not commit are unpersuasive in the face of the judicial scrutiny this case has received. Nonetheless, I have concluded that the lack of physical evidence linking him to the murder, as well as the slim residual doubt about his responsibility for the murder that arises from careful scrutiny of the case record and revelations about the case over the past 20 years, makes the imposition of the death penalty inappropriate in this case.

In making this determination, my staff and I conducted a thorough review of the judicial decisions associated with this matter, the Adult Parole Authority’s reports and recommendations, letters received in the Office of the Governor and by the parole board, the arguments and exhibits presented at the Parole Board hearing, the arguments presented by Mr. Spirko’s counsel in favor of clemency, recordings of various interviews, relevant photographs, newspaper analyses of this matter and Mr. Spirko’s institutional mental health records.

Based on this review, I have decided to commute Mr. Spirko’s sentence to life imprisonment without the possibility of parole.”

Here's the Governor's official order in the Spirko case:

Warrant of Commutation of Sentence

John Spirko, Jr., #A171-433 was convicted of the crime of Aggravated Murder with a Death Penalty Specification and sentenced by the Van Wert County Common Pleas Court to death.

Mr. Spirko is currently incarcerated in the custody of the Ohio Department of Rehabilitation and Correction and is scheduled to be executed on January 24, 2008.

I find that Mr. Spirko’s claim that his own lies led to his conviction for an offense that he did not commit is unpersuasive in the face of the judicial scrutiny this case has received.

I also find that the lack of physical evidence linking Mr. Spirko to the above-mentioned murder, combined with the slim residual doubt about his responsibility for the murder arising from a careful scrutiny of the case record and revelations about the case over the past 20 years, makes the imposition of the death penalty in this case inappropriate.

Accordingly, I direct that the sentence of death of John Spirko be commuted to life in prison without the possibility of parole.

I signed this Warrant of Commutation on January 9, 2008, in Columbus, Ohio.

It's noteworthy the Governor's commutation order so strongly considers the DNA evidence as neither clearing nor implicating Spirko, something missing from most of the media coverage (notably the Plain Dealer) which centers on the evidence not linking Spirko to the murder of Mottinger, whose body was found in a Findlay area soybean field six weeks after she was kidnapped, without noting it doesn't really clear him, either.

It is interesting to note Spirko escapes the death chamber because we think he did the deed but we're not sure enough to allow the sentence to be carried out.

The Governor's reasoning is plainly and clearly expressed and while it may not be a full endorsement of withholding lethal injection for any prisoner (it is important to note there have been a pair of executions in Ohio under Strickland's term: James Filiaggi and James Newton) it comes at the time when the U.S. Supreme Court weighs arguments on whether lethal injection poses "cruel and unusual punishment" enough to order different methods or procedures to be used.