toledoblade.com -- Federal appellate court rules Ohio death row inmate waited too long to file appeal

COLUMBUS — A federal appeals court this morning dealt what could be a fatal blow to a lawsuit brought by a handful of death row inmates challenging the constitutionality of Ohio’s lethal-injection process.

In a 2-1 decision, a panel of the Cincinnati-based U.S. 6th Circuit Court of Appeals ruled that convicted murderer Richard W. Cooey waited too long to question the drugs and procedures Ohio has used 24 times since it resumed carrying out the death penalty in 1999.

Cooey should have filed his challenge within two years after Ohio retired the electric chair in 2001 and maked lethal injection the state’s sole method of execution, the court said. Prior to that, inmates could choose between the two. Cooey, of Summit County, was convicted in 1986 of two counts of aggravated murder.

The suit argues that the protocol’s second drug designed to paralyze an inmate after he’s been rendered unconscious by the first could fail. That, it argues, could leave the condemned to suffer excruciating pain as the third drug induces cardiac arrest.

Six other inmates, among them Toledo native John Spirko in a Van Wert County case, have joined the suit.

The court refused to accept Cooey’s argument that the two-year statute of limitations should have begun running when his execution became imminent after the U.S. Supreme Court refused to hear his last appeal in March 2003

"Ohio did not adopt lethal injection until 1993, or make it the exhaustive method of execution until 2001, so the accrual date must be adjusted because Cooey obviously could not have discovered the ‘injury’ until one of those two dates," wrote Senior Judge Richard F. Suhrheinrich. "We need not pinpoint the accrual date in this case, however, because even under the later date, 2001, Cooey’s claim exeeds the two-year statute of limitations deadline because his claim was not filed until Dec. 8, 2004."

Senior Judge Eugene E. Siler Jr. agreed.

But Judge Ronald Lee Gilman dissented, arguing that the majority seemed more concerned about delays than justice.

"Timeliness is important, but justice is more important," he wrote. "Although the common saying is ‘justice delayed is justice denied,’ there are situations in which the adage does not hold true. I believe that this is one of those situations." He said details about Ohio’s execution procedure were "murky" at best and subject to change as evidenced by the Ohio Department of Rehabilitation and Correction’s response following problems with the May 2, 2006 execution of Toledo native Joseph Clark.

The execution team had trouble finding useable veins through which the drugs could flow to execute Clark. The execution, which usually takes about 10 minutes, ultimately took nearly 90 minutes with witnesses briefly hearing Clark moaning and groaning as the team worked to correct the problem.

The state later changed some of the procedures in preparing and monitoring inmates during the process, but it did not change the drugs or the dosages used. The court’s majority determined that the changes made after the Clark execution were not integral to Cooey’s challenge.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.

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