The judge handling the death-penalty case of the accused killer of two Westerville police officers is questioning whether the upcoming trial will be affected by a recent federal court ruling that labeled Ohio's execution method as cruel and unusual punishment.
Franklin County Common Pleas Judge Richard A. Frye raised the issue Feb. 22 at the start of an otherwise routine hearing on pre-trial motions in the case of 31-year-old suspect Quentin L. Smith.
"I'm not deciding anything today, nor do I want argument today," Frye told defense and prosecuting attorneys after spending several minutes outlining his concerns. "I raise the issue with counsel ... so everybody is considering what's legally appropriate for the future course of this case."
He invited both sides to file briefs if they want to address the ruling's potential affect on the trial.
Smith is charged with killing Westerville police officers Eric Joering and Anthony Morelli on Feb. 10, 2018, in an exchange of gunfire as they entered a townhouse in the 300 block of Cross Wind Drive to investigate a 911 hang-up call from his wife over a domestic dispute. Jury selection for his trial is scheduled to begin Oct. 11.
Last month, federal Magistrate Judge Michael R. Merz in Dayton ruled that using one of the drugs in Ohio's three-drug execution protocol is akin to the torture technique of waterboarding.
The other two drugs also likely produce agony, he wrote, with one providing a sensation like "fire was being poured" through a prisoner's veins.
The decision prompted Gov. Mike DeWine to delay an upcoming execution and instruct the state prisons agency to examine alternative drugs for lethal injections, which has effectively delayed all executions until the matter is resolved. The state is appealing the ruling.
After the Feb. 22 hearing, Franklin County Prosecutor Ron O'Brien said the federal court ruling, for now, has no bearing on Smith's case.
"Those are issues that are down the road," he said. The ruling deals with "the carrying out of a lawful sentence, whereas what we're trying to do here ... is (determine) guilt or innocence."
It would be up to the jury, if it finds Smith guilty with death-penalty specifications, to take part in a second phase to decide whether to recommend death or a life sentence.
"The (execution) protocol may change a dozen times in the meantime," O'Brien said.
Diane Menashe, one of Smith's attorneys, said Frye's comments will prompt the defense team to "supplement our prior filings in the case, particularly with respect to the constitutionality of Ohio's death penalty."