In Re: Ohio Execution Protocol Litigation

Filing 907

DECISION AND ORDER ON DEFENDANTS' MOTIONS IN LIMINE 864 865 . Signed by Magistrate Judge Michael R. Merz on 1/3/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
PROTOCOL LITIGATION,
:

Case No. 2:11-cv-1016

Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
This Order relates to Plaintiffs
Tibbetts, and Otte.

DECISION AND ORDER ON DEFENDANTS’ MOTIONS IN LIMINE

This § 1983 capital case is before the Court on Defendants’ Motions in Limine to
Exclude Irrelevant Testimony consisting of the testimony of lay witnesses to the execution of
Dennis McGuire (ECF No. 864) and of Arizona Assistant Federal Public Defender Dale Baich as
a witness to the execution of Joseph Wood in Arizona (ECF No. 865). Plaintiffs have filed a
Combined Response in Opposition (ECF No. 901).
In addition to Mr. Baich, Plaintiffs had listed as lay witnesses Amber McGuire, Dennis R.
McGuire,1 and Alan Johnson, a reporter for the Columbus Dispatch, all of whom witnessed
Ohio’s last execution of Dennis B. McGuire on January 16, 2014.2 Defendants’ argue that

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This witness was identified as Dennis McGuire, Jr. When filing suit relating to his father’s execution, Mr.
McGuire identified himself as Dennis R. McGuire.
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Plaintiffs had also listed Father Lawrence Hummer, Mr. McGuire’s spiritual adviser, but withdrew his name during
a recent status conference. In their Response in Opposition, Plaintiffs list both Amber McGuire and Father Hummer

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testimony from these witnesses would be “patently irrelevant” because the combinations of drugs
used for the McGuire and Wood executions “differ[s] materially from the combination of drugs
to be used in” the Phillips, Tibbetts’ and Otte executions (ECF No. 864, PageID 27910, ECF No.
865, PageID 27915. Defendants also claim that the current three-drug protocol to be used in the
Phillips, Tibbetts, and Otte executions is a “dosage scheme analogous to that found in Florida’s
[execution] protocol” which was effectively presented to this Court as an acceptable alternative
to the two-drug combination used to execute Dennis McGuire. (ECF No. 864, PageID 27911;
ECF No. 865, PageID 27915-16.)
Acknowledging the differences in the execution protocols, Plaintiffs say they intend to
show that any use of midazolam in executions is unconstitutional because “midazolam will not
cause an inmate to become unaware and insensate to the pain and suffering associated with the
drugs in Ohio’s execution protocol and the process of dying following injection of those drugs,
and therefore he will suffer an excruciating and torturous execution.” (Response, ECF No. 901,
PageID 30159). The McGuire siblings may also be offered to show “the biased nature of the
McGuire investigation” conducted by the State of Ohio. Id. at PageID 30160. Plaintiffs also
offer an extended argument about why whatever was said on Dennis McGuire’s behalf about the
Florida protocol is not binding on them as separate parties and does not amount to an
endorsement of Florida’s protocol.

Analysis
For a general standard, the Court relies on a decision of District Judge Gregory Frost, a
judicial officer with whose jurisprudence all parties to this case are familiar:
as possible witnesses “if for some reason, Plaintiffs for some reason, Plaintiffs to call them as witnesses.” (ECF No.
901, PageID 30160, n. 1.)

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Motions in limine are generally used to ensure expeditious and
evenhanded management of trials by eliminating evidence that is
clearly inadmissible for any purpose. See Jonasson v. Lutheran
Child and Family Serv., 115 F.3d 436, 440 (7th Cir.1997). The
court has the power to exclude evidence in limine only when
evidence is clearly inadmissible on all potential grounds. Cf. Luce
v. United States, 469 U.S. 38, 41 n. 4 (1984) (federal district courts
have authority to make in limine rulings pursuant to their authority
to manage trials). Unless evidence meets this high standard,
evidentiary rulings should be deferred until trial so that questions
of foundation, relevancy and potential prejudice may be resolved
in proper context. (citations omitted). Denial of a motion in limine
does not necessarily mean that all evidence contemplated by
motion will be admitted at trial. Denial merely means that without
the context of trial, the court is unable to determine whether the
evidence in question should be excluded. The court will entertain
objections on individual proffers as they arise at trial, even though
the proffer falls within the scope of a denied motion in limine. See
United States v. Connelly, 874 F.2d 412, 416 (7th Cir.1989) (citing
Luce, 469 U.S. at 41) (“Indeed, even if nothing unexpected
happens at trial, the district judge is free, in the exercise of sound
judicial discretion, to alter a previous in limine ruling.”).
Hawthorne Partners v. AT & T Technologies, Inc., 831 F.Supp.
1398, 1400-01 (N.D.Ill.1993).
Weimer v. Honda of America Mfg., 2008 WL 4332525, *1 (S.D. Ohio, Sept. 17, 2008)(Frost, J.),
quoting Indiana Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846-47 (N .D. Ohio 2004)(Katz,
J.).
Motions in limine are very useful in managing evidence admission or exclusion in jury
trials because they obviate the need to keep a jury sitting idle while a court resolves what can be
complex evidentiary questions. See, e.g., Decisions and Orders deciding motions in limine in
Wells Fargo v. LaSalle Bank, Case No 3:07-cv-449, ECF Nos. 217, 219, 242, 243, 244, 245,
260, 261, 262, 263, 264, 267, 268, 269, 270, 271, 274, 275, 276, 277, 278, 279, 280, 282, 284,
284, 285, 296, 297, and 298. Deciding the admissibility of designated deposition testimony in
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advance of trial reduced what would have been a least a six-week trial to a manageable three
weeks.
There is here no particular judicial economy in deciding admissibility questions before
hand. Because there will be no jury involved in the preliminary injunction hearing, it will not be
necessary to interrupt jry attention to testimony with rulings on admissibility.
Secondly, as Judge Frost notes in Weimer, supra, unless evidence is clearly inadmissible,
“evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and
potential prejudice may be resolved in proper context.”
Finally, in limine rulings on relevance questions are unnecessary where a matter is being
tried to the bench. Inadmissible evidence is presumed to be ignored by a judge in a bench trial.
Harris v. Rivera, 454 U.S. 339, 346 (1981)(per curiam); Wickline v. Mitchell, 319 F.3d 813, 82324 (6th Cir. 2003). Hence there can be no prejudice to Defendants if irrelevant evidence is
admitted but then ignored by the Court.
Accordingly, the Motions in Limine are DENIED. All questions of admissibility of
evidence will be decided during the hearing or in evaluating the evidence after the hearing.

January 3, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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