Lawyers try to stop second Ohio execution try

Lawyers plan state and federal lawsuits and a request to Ohio Gov. Ted Strickland to stop next week's unprecedented second execution attempt of a man whose lethal injection failed on Tuesday.

Cleveland attorney Tim Sweeney said Thursday that he expects lawsuits to be filed no later than Friday in an effort to halt the next attempt to put Romell Broom to death.

Sweeney argues that a second try at an execution is unconstitutional. At the very least, he said, Strickland should further delay Tuesday's execution.

Broom "sustained both physical and mental injuries," Sweeney said. "It's going to take time for all the psychic trauma to dissipate. Even if it never goes away, I think it's wrong to try to do it again so quickly in these circumstances."

Strickland stopped Broom's execution after executioners tried unsuccessfully for two hours to find a usable vein. Broom, who at one point wiped his face with a tissue and appeared to be weeping, told his attorneys he was pricked as many as 18 times.

Broom, 53, was sentenced to die for the rape and stabbing death of a 14-year-old Tryna Middleton, a girl he kidnapped in Cleveland in 1984.

Cuyahoga County Prosecutor Bill Mason said it was ironic that Broom was complaining about the execution given the nature of his crime.

"I am absolutely certain that it was Tryna Middleton that suffered from cruel and unusual punishment," Mason said.

Broom remains at the Southern Ohio Correctional Facility, where the prison system is monitoring how much he's drinking, said prisons spokeswoman Julie Walburn. Officials want to make sure Broom is not dehydrated before the execution, but they can't force him to drink more, she said.

Dehydration could make it more difficult to find veins, however, Walburn said there's no evidence that caused Tuesday's problems.

Another execution attempt could include the same veins they tried accessing Tuesday or other points on his arms, legs or feet, Walburn said.

Late Thursday, U.S. District Court Judge Gregory Frost agreed to give lawyers challenging Ohio's lethal injection system in an unrelated lawsuit more time to gather information related to the Broom case. Their original deadline for gathering information had passed.

Federal public defender David Stebbins, who's working on the earlier lawsuit, said he plans to interview Broom on Monday in the Southern Ohio facility in Lucasville.

The fact that Broom survived the execution "creates a singular opportunity to confirm that he, in fact, experienced serious pain in violation of his constitutional rights, not just a 'substantial risk' of serious pain," Stebbins and attorney Allen Bohnert argued in a court filing.

The only case similar to the Broom execution happened in Louisiana in 1946, when a first attempt to execute Willie Francis did not work. Francis was returned to death row for nearly a year while the U.S. Supreme Court considered whether a second electrocution would be unconstitutional.

The court ultimately ruled against Francis 5-4 and he was put to death in 1947.

Broom has a much stronger case than Francis, said Deborah Denno, a Fordham University law professor and death penalty expert.

It was unclear how far the first execution actually went and whether Francis experienced the electric current, she said. The court's uncertainty about that fact played a major role in its decision to return him to the electric chair, Denno said.

In the case of Broom, however, "There's absolutely no question that the execution process started," she said.

Justice Felix Frankfurter, a swing vote in the court's 1947 decision, also said a different set of facts could have led to a different decision.

Those facts could include "a series of abortive attempts at electrocution," he wrote.

Denno said that's clearly the case with the Broom execution attempt.