In Re: Ohio Execution Protocol Litigation

Filing 912

ORDER TO PROVIDE INFORMATION - If the State of Ohio has sufficient execution drugs on hand to proceed with executions beyond those of Phillips, Tibbetts, and Otte, it is hereby ORDERED to file with the Court, not later than January 13, 2017, a statement of its intentions. Signed by Magistrate Judge Michael R. Merz on 1/10/2017. (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 All Plaintiffs

ORDER TO PROVIDE INFORMATION

On the afternoon of January 9, 2017, the Court received word that the Columbus
Dispatch was reporting that the Ohio Department of Corrections and Rehabilitation had received
additional supplies of midazolam, rocuronium bromide, and potassium chloride. That report was
repeated in the Dispatch on January 10, 2017 and in an Associated Press newsbreak on the same
date. When the undersigned inquired in open court if there had been a public announcement, the
Court was advised that there had not been. The news stories indicate the source of their
information is “inventory logs obtained by The Associated Press through a public records
request” which is consistent with information provided to the Court verbally by Stephen Gray,
general counsel to ODRC. The Associated Press extrapolates from the logs that Ohio now
“could conceivably carry out dozens of executions with these supplies.” Although the AP

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reports that “[a] spokeswoman for the Ohio prisons agency declined to comment,” the Court
requires comment from ODRC.
At the status conference on October 3, 2016, Defendants indicated they intended to
execute Ronald Phillips, Raymond Tibbetts, and Gary Otte with the three-drug protocol they
announced in that same conference, at least implying that their supply of the drugs was not so
plentiful that they expected to be able to continue executions beyond those three men.
(Transcript of Conference, ECF No. 672, PageID 19898.) . It was therefore only as to those
three Plaintiffs that the Court dissolved the stay of proceedings (Order Partially Vacating Stay
and Setting Schedule, ECF No. 658, PageID 19732). As of October 3, 2016, according to the
Court’s notes, execution dates had been set for twenty-six death row inmates; inmate and
Plaintiff Lawrence Landrum has had a date set since then.1
If the State of Ohio has sufficient execution drugs on hand to proceed with executions
beyond those of Phillips, Tibbetts, and Otte, it is hereby ORDERED to file with the Court, not
later than January 13, 2017, a statement of its intentions. Other Plaintiffs besides the named
three have a right to proceed with this litigation if Ohio believes it is now ready to proceed with
their executions. The Court notes, for example, that the execution of Alva Campbell, Jr., appears
to be set for May 10, 2017, and that of Donald Ketterer for a week later on May 17, 2017. If the
State intends to proceed with those executions as scheduled, there is now only as much time left
before the Campbell execution as there was left before the Phillips execution as scheduled for
January 2017 when the Court partially vacated the stay. Counsel are aware of how demanding
the scheduling has been since October (reflected in 256 docket entries to date).

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The Court has learned this from news accounts; no copy of the death warrant has been filed in either this case or
Landrum habeas corpus case, 1:96-cv-641.

2

Repeated emergency proceedings are not an appropriate way to conduct this important
litigation.

January 10, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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