Sept. 18, 2009 -- On Tuesday night, convicted killer Romell Broom ate the strangest meal of his life: veggie nuggets, lima beans, bread and cookies.
It wasn't the menu that was extraordinary, but the fact that he was alive to eat the food.
Broom is the first person ever in U.S. history to be scheduled to die by lethal injection, and then to have his execution postponed because authorities were unable to find a suitable vein in which to inject the three-drug cocktail that was meant to kill him.
Concerned by the failed attempts, Ohio Governor Ted Strickland delayed the execution, and a federal judge has pushed it back until at least September 28, pending appeals.
But Broom's lawyers filed papers in state and federal court today, contending that Ohio shouldn't have a second chance to subject Broom to lethal injection.
Broom was convicted of fatally stabbing Tryna Middleton in 1984.
Adele Shank, a lawyer for Broom, says she has spoken with him and seen the puncture wounds. "He is swollen and red and is in active, aching pain." she said.
Broom's lawyers contend that the Ohio system -- where officials took two hours trying to puncture Broom's arm -- is critically flawed. Thus, Shank said, death by lethal injection constitutes cruel and unusual punishment.
"His arms hurt and his veins are damaged," said Shank. "If they couldn't do it last week, next week will be an invitation of disaster."
In an affidavit filed with the court, Broom says nurses tried 18 times to insert a needle in one of his veins, but never could.
"He attempted to insert the IV," said Broom of one male nurse's attempts, "but he lost it and blood started to run down my arm. The female nurse left the room. The correction officer asked her if she was OK. She responded, 'no' and walked out."
Death penalty opponents are convinced that the unprecedented "temporary halt" will be anything but temporary, and they hope this case will reignite the debate over whether lethal injection constitutes cruel and unusual punishment.
Debate Over 'Cruel and Unusual Punishment'
Richard Dieter, a death penalty opponent who runs the Death Penalty Information Center, says the debate is likely to spread in the next few days, and that Ohio's governor will be forced to postpone Broom's execution again.
"One argument," said Dieter, "is that even if lethal injection is constitutional, is it cruel and unusual punishment in the cases similar to Broom, where there are no acceptable veins found?"
Michael Brickner of the Ohio American Civil Liberties Union says the governor should halt all executions in Ohio. Brickner points to other flawed attempts in Ohio's past and said, "If we continue on with executions, there will be a high probability of more cruel and unusual punishment. "
But victims rights advocate Kent Scheidegger of the Criminal Justice Legal Foundation argues, "It's important to keep the original crime in mind. Whatever he suffered by a few pin pricks is trivial in comparison to the crime he committed."
Middleton was murdered as she walked home from a football game.
In 2008 there was an unofficial nationwide moratorium on executions after the Supreme Court agreed to hear a case testing the constitutionality of Kentucky's lethal injection system. In the end, a 7-2 majority ruled that Kentucky's method was constitutional, but Justice John Paul Stevens wrote a bombshell dissent: for the first time, he said he thought the death penalty itself was unconstitutional.
"I have relied on my own experience," he wrote, "in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.'"
Just last month justices sparred on the larger issue of the death penalty again when the court agreed to send the case of death row inmate Troy Davis back to a lower court to see whether new evidence might establish his innocence. Justice Antonin Scalia, writing in dissent, criticized the court's decision, calling it a "fool's errand."