that day if suffering as that execution progressed very substantial pope in terms of his physical pain but also the very human trauma that he endured as it went on and on and his human dignity was an extreme only after two hours but to get execution stopped and he was told he had to return again the next week to go through it again on these facts  to undertake and it bars it by any means or any method today i'd like to address the th amendment claim principally but either the seven or the th amendment or bow in puddle mr broom reach a decision that under the controlling law should be treated as an adjudication on the merits or the very least within a reasonable determination of the facts in light of the evidence that had been presented in the state trial court the principal problem with the supreme court of ohio's the fish is that it went outside the record to determine against m of execution standard at the court applied to him for the st time in that case it cage was not a method of execution case on the last day on how supreme court required him to prove a likelihood of severe pain would be suffered in the nd execution if it went forward and that the state was likely to violate its protocol in the future at the method of execution standard which he isn't raising and hasn't been raising but the supreme court applied that standard to him for the st time in his case and then went outside the record to adjudicate that fact issue against him based upon evidence that broom didn't present and never had an opportunity to which certainly are important cases and we're also aware of this court's decision in ballenger at lowe's and some of the others but those courts and for the proposition that when a limited state court record is what's been a fembot in the state position or isn't heightened once you get in the federal court to ask the federal court to look beyond that record but that's not what happened here this isn't the situation where broom went into the federal court math judge boyko to look at all this evidence and i now want to present to you that was in the state record what happened here is that the state supreme court went outside that record and looked at evidence the broom hadn't presented ever had a chance to confront and which was principally reliant on a protocol that was ephemeral tenuous and subject to change at any moment it did are you referring to the evidence regarding twenty one execution that thought well i don't i don't think that would be right it certainly would be appropriate to say it should have been considered but i think the fact was that this was the way the supreme court of ohio  cated the claim against him without giving him an opportunity to address any of that evidence and so i don't know that we can put it back to in a put put the put the cave back in the posture it should have been in because and if you do get a card that i have and then it would seem to me brooms and title to relieve obviously without any question it would seem to based upon the record that had already been presented because the principle probably of how supreme court committed eric committed here is that it applied a standard requiring him to look to the future and assess risk when that simply isn't the proper standard in his claim and by looking to the future as opposed to what had already happened the court misapplied the law they have made they and they unreasonably determine the facts which is why your honors in both a poor appellate proceedings there w which it called now you had to prove the liberating difference in that court you acted that standard for broome's claim and then without giving him a chance to prove it or even any notice that that was going to be the standard  that he couldn't prove it and rejected his claim when he got to the house supreme court the same type of thing happened and again there was a sharply divided court there the court said no deliberate indifference isn't the standard but you do have to prove it's sure bit of execution or were blocking problems with the state protocol and whether it will expose you to risk in the future and again look at evidence that wasn't in the record well the thing that twenty one executions and other things that they drew from court opinions and other things that weren't in the record and polluted that room could not meet that standard without giving him a chance to try without giving him a chance to rebut their contradict or present additional evidence or different evidence that would meet the standard that the supreme court of ohio said he was required of me in that circumstance and he ended up with that  order three decision justice french concluding that this was clearly a problem that it didn't get room an opportunity to be heard but the fundamental breakdown in the state court system and such an important sort of a once a half century type  claim to be setting standards for the st time when the litigant arrives and then relying on facts that he never has a chance to come on to adjudicate that once a century claim against him fair characterization of mr growing position thank you for the question your honor i don't think that's a fair characterization and i really think we've been involved in this for many years going back to the very beginning i think the arguments of them bad what happened to him already is sufficient to establish it constitutional violation and even looking forward you know there's nothing to believe that it's going to be any different he's got the same vein that we've always been argument he got with a main you've got the same you know lightly medical paraprofessionals doing the i v act you've got the same rock you know the same requirement of obtaining i v access through the peripheral veins all of those things are going to be the same in the future in fact that was the truth and that was correct and that was a to the record when broome first filed his claim it was only after as you recall right before the pyrotechnic usia and that the state of ohio made a change and they said in broome they said because of broome we're going to change and we're going to get rid of the three drug protocol because of the stress it places in part and the importance of i v access and we're going to introduce a backup method and that was the method that was in place for these twenty thousand executions at the house supreme court relied upon the different method  axis wasn't as important and when there was a back up so you know what went through what happened since then though is that the state court doesn't have the state doesn't have that method any longer now broome is back in the situation facing a worse protocol than the one he faced in two thousand and nine because now the st drug is moved out along with there certainly evidence to suggest is not sufficient to you know do it do its job and there's no back up so he's back exactly where he was in two thousand and nine facing the same problem again with the same team but you know minimally competent there is evidence in the record of of that being an issue of incompeten court decision against him you know if there's a supreme court or how decided this case in march of two thousand and sixteen it was in in the fall of two thousand and sixteen because ron phillips was going to be executed i was his lawyer they made that change in the fall of two thousand and sixteen could go back to the three drug method and that was all that litigation about whether that was permissible given the promise that they would never do that ever again but we had i  three challenge to the week or injection method that would exist when your client is about to be executed i think my point with respect to those changes in the evidentiary record and how easy it is for the protocol to be changed is a point that goes to the question hey b s about whether the supreme court of ohio when it's looking at that evidence and trying to make making judgments about it against the client's claim that   facts i think are so critically important for the court to look at when it trying to decide whether there's been this old unquote extreme malfunction in the state system but i look at them for the moment place which is that room is entitle to a good noble look at this because the thing about reese weber and handed down the point that this was viewed as an unforeseeable accident and that's just that's just not r case by any stretch i mean if webber will be francis that was a one time thing where the electric chair malfunctioned one time it was a couple a minute now function that with it there's no history of any prior problems none of that was in that record here you've got a situation where ohio had been struggling many times with i v access with guys trying to execute them joe clark for example you know quark with eighteen times sort of like broom you know that was only a couple years before parole there is no backup plan in place after joe clark even though it was obviously clear there were problems with i v access so the perceivable accident is simply wrong and you know that these labor talks about that that's not the case but also the seven but that's simply not true in groups case i mean the amount of pain to which broom was subjected is striking compared to what willie francis suffer he described what he suffered as a typical you know when i heard that there was excuse me i thought maybe here's the point there on that your honor may be there at the very that perhaps there may have been a factual dispute and i think that was one of the questions that be the key dissenting justices i think we're looking at is that he should have had an opportunity go back and have a hearing on to determine if he even suffered any pain of the electricity or even got to him because he was there is evidence in the record at least in the resort of cases i recall it where he was quoted saying you know i felt  pickle but you're right there were some conflict in reports that that his you know after when that when the electric chairs switch was pulled that the chair rot and i think that his eyes may have you know made some sort of response so there was some conflict in evidence and perhaps he he did suffer some pain but nonetheless compared to broome which went on for two hours you know being left in that room by himself and then you know for three or four different attempts being made on him now this is a serious nothing left it's a series of abortive attempts on group because they tried three or four different you know different you know perks made after they took a break they go back to take a break they go back  like a typical there was a new electric current there that make a difference no i don't think that makes a difference at all in fact i think improved case with the pain the process started in both cases for all any reasonable assessment of what an execution starts in both of those cases they started and brooms get it most certainly started they read the warrant of the video started it witnesses have been assembled fall in process began he surrendered his body to the state that's what he did direct a column said wanted belongs to the state isn't it isn't stopping and that's what he testified i think of it like a ball being dropped from the top of a roof they let go of the ball and the only way it was going to stop is if somebody the governor stuck and that out before it hit the ground that's what happened here the governor stuck in that out before it hit the ground the process started and the level of pain that was inflicted upon a remote room compared to re willie francis is really strikingly different and which is why i think when you think about the th amendment and what it means today with the focus on dignity and you know how important that concept has become an th amendment law which wasn't discussed or even addressed but we francis's case but the human dignity that now is so important which is why reece webber case isn't a clearly established better law a law that tappable who this time of the things we claim the day is proper and the cases that have come since then which so clearly talk about dignity in avoiding you know punishments that even if not painful can nevertheless be psychologically cruel for placing someone in a year of ever increasing fear and distress those types of you ation well yes your honor i would i mean i really think there's a steady drumbeat of case law from the on how to the united states supreme court which of can have consistently reaffirmed the importance of human dignity when we look at punishing fellow human beings you know a style the gamble that talks about dignity the broad an ideal with the concept the dignity of a life standard human decency that case kennedy versus louisiana in two thousand and eight yes i do believe they did refer to reese whatever but again your honor those are different cases both cases are asking the question about whether somebody who has already run the gauntlet should have to run again both cases are asking whe ther someone who never has that's the case drew might have brought before he was executed but the case broom is bringing how the case that joe clark could have brought had he not died no that's not my point that would be my point well i now i mean there was already a lot of pain inflicted why is that different zero two i guess i'm i'm wondering about the st break me here's my view of this case think if you're trying to draw a line i recognize that that can be difficult but the th amendment speaks to dignity and human dignity and decency and at some point we crossed that line and in broome's case we crossed it i recognize that when you get to two or three or four into it maybe it's because that's what happened to al the campbell remember alba campbell he's the guy that ohio tried to execute in two thousand and seventeen who was at all these different medical conditions and they were unable to get access after i think the record or at least the press reports this is in one of our footnotes that maybe three or four times you know and the state stop that and nothing else it shows that the standard is even he has gone to the point where they'll stop at three or four but i don't know less wherever that line is your honor and i recognize that those issues were the line is can sometimes be be difficult when you're at that early stage but in broome case they passed that by any stretch it and certainly by the time they're bringing in a doctor that doesn't even belong on the team now they're summoning someone who is this poor woman doctor but pista who is a contract position working at the know how correction facility for a few months she didn't even know what the got house with used for she wasn't on the execution team they call are over by the warden in our boss so she comes over and she's inserted into the you asked about you and asked about which cases and i think there's a number and i think a number of the other point to make with respect to that is that you can have two or more principles from the supreme court case law and you can apply it together  i would think most a b s cases is that whether the ohio supreme court's denial of mr broom's claims that the failed execution and gave rise to a violation of his  only one instance in which the u s supreme court has addressed this type of field executions and are you and that is the race waiver case and in that case the supreme court rejected the claims now it's important here to consider that reese waiver has been construed and actually has been applied recently fairly recently by the supreme court in this court and what we've connolly referred to as a method of execution claims and that is why i think that as well because of this your honour's the two issues are related in the sense weyburn has been seen as a stablish thing that the unintentional failure to carry out an execution is not cruel and unusual punishment and that does not involve the type of cruelty and pain that is prohibited by the th amendment these this is related of course to the idea as to whether an execution presents a risk of constitutionally prohibited pain that is why in the base the plurality opinion referenced risk that is prohibited by the th amendment goes beyond the risk that there might be a failed execution attempt which would result in pain  now that has been the way race weyburn has been applied and it makes sense mr sweeney's position seems to be this that we can divine neatly and consider conceptually in neatly the issue of whether the attempt to execute him sell the violated the th amendment and whether a future attempt would do so but that really can't be done and then look at that you can just go right the actual the failed attempt to execute mr broom violated is right in the th amendment is related to whether a future attempt would do so those things are inexplicably linked and have been linked by the supreme court and so far as it's been recognized that in a normal case you're talking about a risk of a constitutional pain and that the issue that's presented i don't think that you can just separate conceptually two questions mr sweeney in his brief on direct you'll recognize that he said not only that you can't get excuse mr broom violated his rights under the age of mehmet but also any future attempt under any method under any future protocol w likewise do so so essentially what mr sweeney did was he put in issue the any future attempt and not only did he put it in issue but it's it inevitably is an or that the issues are related inexplicably link because again any kind of the normal type of execution claim involves an assessment of risk of what's going to happen in the future now th there have been shouldn't there have been an evidentiary hearing about what kind of method would be used in the future to decide whether it's nd attempt to execute would be a violation of  broome argued that any future attempt would be unconstitutional as well he did not ask for discovery explicitly at the trial court and incidentally mr broom put in lots and lots of evidence in the form of documents and so forth that was generated by the litigation concerning federal litigation concerning think your honor that's not the fault mr sweeney the fault here is that again this case as he's pointed out really is different in the sense that it doesn't involve the sale execution attempt so it does it's not as straightforward well perceived as are going to be used to execute mr groome violate the constitution but those things are interrelated as i said before because in the in the end those things are related because they relate to the whole idea the core issue the core holding of if you would release what's been attributed to stand for it race waiver is unfortunate things happen  these things can have been but there's no intent to inflict cruel and unusual punishment and the type of pain that is experienced is not but type really of pain if you will  supreme court recently said in buck lou it's not the type of c added pain that falls within the th amendment prohibition however unfortunate this was i'm sure mr broom's names was a necessary incident of conducting lethal injection it in no way suggests there's no suggestion here or logical reason to say here this is was any kind of super added pain or any kind of pain honor i would say i have to say that given justice frank kurz concurrence he did leave open the possibility i can't remember his exact words but he left open the possibility that you could have such repeated repeated instances in the nature of what occurred in greece waiver that it could rise to a level of a constitutional violation but in that regard i think is the record shows that ohio has done many many things to assess that risk oh hi i hadn't done much to it and many of the changes the safeguards that were implemented you know i was execution procedures were designed to prevent that type of occurrence and in fact we had unfortunately in broome's situation those safeguards are after that more time that it was recognised that more safeguards were needed after clarke those safeguards included more detail and instructions to the execution team members and as while clarke was occurring the court added the issue before it as to whether what the statute of limitations was for these types of claims and so you can see if the court was aware that yes there was difficulties but the court noted that additional safeguards had been put in place as we go  executions in other cases the if you will the execution track record as reflected in judicial decisions in assessing claims under the method of execution claims und different result and but he did see justice was was very much concerned to address that and said no we are going to look we're going to set up we're going to establish a standard here we've thoroughly reviewed this and we information to be extent as to how many times that particular execution protocol at issue was utilized and was found to be adequate by the courts and in supreme court had gone beyond the evidence or done something wrong it is a matter that again is the nature of these types of claims recently in the but with case justice is opinion was based very much on his assessment as to the pain that was caused by execution by hanging and he made the comparison there and there was no suggestion that somehow there was evidence presented in the case as to how we would compare the execution pain produced by hanging versus the type of pain that was at issue in that case i don't want to downplay the idea i want to make it clear that what happened to mr broom was was unfortunate and he he did suffer pain i mean there's no question he did but when it comes down to the type of pain that's prohibited by v a amendment we have a supreme court holding that says at least that's been construed to say that pain that might caused by an unsuccessful execution not only the pain by incidentally not only the pain by electricity but the psychological pain which mr francis argued that he is psychological pain t that would be prohibited by the constitution that's what we have now the aisles supreme court applied that president and we would submit what are they applied it was not contravene  consistent with with that case there really could really come right down to it in order to find something to say as mr sweeney says this is when he says well that that's really kind of outdated well in order to the distinct factual circumstances presented here unique factual circumstances and we think it's well established that in haiti is corpus something that just can't be done that you cannot take those general principles and apply them to distinct factual circumstance for the st time ultimately the case comes down to i think i believe the case comes down to  simply that that whatever occurred in the mr mr broom it was unfortunate it was it was something that should not be forgotten it should it should resonate in ads resonated but the long and short is is that you hired supreme court did not contravene misapply contravene the standards set forth by the supreme court the united  as justice frankfurter said in concurring well conceivably repeated deliberate attempts i mean i mean something in the nature of you know deliberately bringing a person to the edge of execution stopping and then bringing them back you know if i can keep some of the tortures that were done over the years you know put somebody in front of a firing squad the guns click you know bring them back the next day advanced and it has but nevertheless it's never been applied to this particular factual situation other than reste waker that again that was a cowling point in federal corpus and as a matter of fact it would seem to be at least a debatable yet whether whether double jeopardy would be seen to be even apropos now in this unusual situation that might be reasonable to a reasonable debate because after all mr mr prone was not part of why he no one can be executed twice so he the punishment that he received his death and he has not has not received that punishment so but but i think double jeopardy clause here again the that argument i think really is intertwined with reese waiver and it's deferential standard of thank you thank you thank you very much no question in their in their mind that it implicated so in some point it's going to have to be violated it's implicated the notion that can never be violated because you can never die twice just can't be right it implicated in the context of capital punishment i are so fundamental that when they arise you know be applied when you see it you know and this is one of those double jeopardy claim here we think it's an easy claim but when you end a blended jeopardy attached in that context of an attempted execution that's an issue of federal law your honor which is why the state vision isn't in kind of any difference it attaches at the very least once he surrenders his body could the executioners and they begin to execute him by inflicting the pain which is what they did here and wherever that line is it's crossed here because of how long it went on how this went on for two hours with three i think you could say three maybe four separate attempts with the brakes well the st attempt was ten or fifteen minutes and then a break and then another i think there was another i think one person took a break and then the nd attempt would have been with different people and then they took a big break and then there was the rd attempt and then there would be a temp with the doctor so there's like four different pampling where ever the line is for jeopardy that patch meant it was crossed here that's an issue of federal law it was a once in rationale or analyzing the question of whether you can attempt to carry out the sentence twice it seems like such an easy logical not an extension but an application of the notion that point here to make a rebuttal and i think it's important to remember no court has given mr groome a hearing oh and so when you talk about a future account and if that's part of what has to be shown we're going to should have been an opportunity to have a hearing argument over time at the st attempt is an unconstitutional with an unconstitutional situation and violated his rights under the th amendment but even if he did on a nd attempt would be he made those arguments he's always made those arguments that's always been his constant approach to this case from the beginning when he st filed his his abs or his post conviction petition in the state trial court in two thousand and eight has never had an opportunity to present prove any of that because he was never given a hearing never given discovery never given a hearing the court that the a trial court denied it without any kind of hearing or anything like that than i did with the several page and three and then it went up to the appellate process that many it's not enough to just say what the level of pain you also have to say under the th amendment what about the human dignity aspect of this that's again the notion of where you have fundamental constitutional princip they may come from two or more supreme court cases but you will apply them together in those principles say pain but also dignity what about the offense to his human dignity what about that what about the trauma that we now know based upon him more modern conceptions of the impact of trauma on human beings and how it affects people that's something they didn't know in the forty's that are all but irrelevant they are now pertinent under constitutional principles that are prevalent in the st century that may not and were not prevalent in the middle of the th when the race were case was decided that the real problem here with this case is looking back to such type of i could think justice justice o'neill william on the you know when he sent him the our supreme court he said it best when the question was asked what the nd attempt constitute cruel and unusual just so obviously true here based upon what we know now after trop and after the steady stream of u s supreme court cases that reaffirm constantly of the importance of human dignity these are not abstract