COLUMBUS, Ohio - Ohio's top court has agreed to hear arguments that the country's only survivor of a botched lethal injection would face cruel and unusual punishment and double jeopardy if the state again attempts to put him to death.
Romell Broom, 57, was sentenced to die for the 1984 rape and slaying of 14-year-old Tryna Middleton after abducting her in Cleveland as she walked home from a Friday night football game with two friends.
His 2009 execution was stopped by then-Gov. Ted Strickland after an execution team tried for two hours to find a suitable vein. Broom has said he was stuck with needles at least 18 times, with pain so intense that he cried and screamed.
An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try — again, unsuccessfully — to find a vein.
Broom's appeals in federal court are on hold while the state court hears the constitutional arguments.
Broom has been back on death row since. No new execution date has been set.
In 1947, Louisiana electrocuted 18-year-old Willie Francis by electric chair a year after an improperly prepared electric chair failed to work. The U.S. Supreme Court ruled 5-4 to allow the second execution to proceed, rejecting double jeopardy arguments. A state's administration of its criminal law isn't affected by due process rights, when "an accident, with no suggestion of malevolence, prevents the consummation of a sentence," the court ruled at the time.
Broom suffered more than inmates during "a normal execution," meaning a second attempt would punish him twice for the same offence, defence attorneys Tim Sweeney and Adele Shank told the state Supreme Court in a May 2012 filing.
"Any effort to execute Broom a second time will necessarily repeat at least some part of the pain he has already endured, and that he can only be required to endure one time, thus punishing him twice for the same offence," they said.
The state argues that Broom never underwent the execution process since the procedure was called off before the drugs could be introduced into his veins.
Since the state's only failure was preparing Broom for an execution attempt, Broom "cannot be held twice in jeopardy by a second execution proceeding as a first execution attempt was never made," Matthew Meyer, an assistant Cuyahoga County prosecutor, said in a June 2012 court filing.
Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus.
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