Pat Dollard | Young Americans

COLUMBUS, Ohio — A death row inmate scheduled for execution in October says he’s so fat that Ohio executioners would have trouble finding his veins and that his weight could diminish the effectiveness of one of the lethal injection drugs.

Lawyers for Richard Cooey argue in a federal lawsuit that Cooey had poor veins when he faced execution five years ago and that the problem has been worsened by weight gain.

Cooey, 41, was sentenced to die for raping and murdering two female University of Akron students in 1986. After a federal judge granted Cooey a last-minute reprieve in 2003, Cooey was returned to death row. In April, he lost a challenge to Ohio’s lethal injection process when the U.S. Supreme Court said he had missed a deadline to file a lawsuit.

Cooey’s attorneys cite a document filed by a prison nurse in 2003 that said Cooey had sparse veins and that executioners would need extra time.

“When you start the IV’s come 15 minutes early,” wrote the nurse who examined Cooey. “I don’t have any veins.”

The lawsuit, filed Friday in federal court in Columbus, also says prison officials have had difficulty drawing blood from Cooey for medical procedures. Cooey is 5 feet 7 inches tall and weighs 267 pounds, according to the lawsuit.

Cooey’s execution is scheduled for Oct. 14. He would be the first inmate put to death in Ohio since Christopher Newton was executed last year for killing a prison cellmate over their chess games.

It would also be the first execution in Ohio since the end of an unofficial national moratorium on executions that began lV injection procedure.

Since the court upheld the procedure in April, 16 inmates have been executed around the country.

Attorneys for Cooey in his latest lawsuit say a drug he is taking for migraine headaches could diminish the effectiveness of the first of three drugs Ohio uses in its execution process.

Cooey’s use of the drug Topamax, a type of seizure medication, may have created a resistance to thiopental, the drug used to put inmates to sleep before two other lethal drugs are administered, Dr. Mark Heath, a physician hired by the Ohio Public Defender’s Office, said in documents filed with the court.

Heath also says Cooey’s weight, combined with the potential drug resistance, increases the risk he would not be properly anesthetized.

That’s a real concern for Cooey, his public defender, Kelly Culshaw Schneider, said Monday.

“All of the experts agree if the first drug doesn’t work, the execution is going to be excruciating,” she said.

She said the Department of Rehabilitation and Correction has not indicated how they would deal with Cooey’s vein problems.

Prisons system spokeswoman Andrea Carson and Jim Gravelle, a spokesman for the Ohio Attorney General’s Office, both said Monday they hadn’t seen the lawsuit and couldn’t comment.

Last year, Carson cited the obesity of Newton as one of the reasons prison officials had difficulty accessing his veins before his May 24 execution. Newton was 6 feet, 265 pounds.

Two years ago, convicted killer Jeffrey Lundgren argued unsuccessfully that he was at greater risk of experiencing pain and suffering because he was overweight and diabetic.

A federal appeals court rejected the claim by Lundgren, convicted of killing a family of five in an eastern Ohio cult killing. He was executed in October 2006.

In 1999, lawyers for Florida condemned killer Allen Davis, who weighed 350 pounds, argued the voltage in the electric chair fell short of the amount needed to kill painlessly, especially for a man the size of Allen.

During Allen’s execution, blood poured from his face in what officials said was a nosebleed that happened after he died.

The crime and the delayed punishment:

On Borrowed Time

by Mark Gribben

Richard Wade Cooey sits on death row in Ohio on borrowed time, but he’s got plenty of it.
Two years ago next month, Cooey was 13 hours from a date with the executioner when his attorneys completed the legal equivalent of football’s “hail mary” play and bought the rapist-murderer something he denied his two young victims — more time to live.

Recently, Cooey marked the end of his 19th year on death row. He has spent almost as much time there as his victims, Dawn McCreedy and Wendy Offredo spent on earth.

In 1986, Cooey was home on leave from the U.S. Army. He spent the day of August 31 drinking with a pair of friends from high school, Clint Dickins and another man who was not charged in relation to the crimes that sent Cooey to death row. Late in the evening on the 31st Cooey and his brain-trust were amusing themselves by throwing pieces of concrete from an overpass at the cars on the highway below.

One of the concrete blocks — about the size of a basketball — struck the windshield of a car driven by college student Wendy Offredo, who along with her friend Dawn McCreedy, had just finished a shift at a local coffee shop, the Brown Derby.

The women were unhurt by the attack, but that was when their luck ran out.

Cooey, Dickins and the other man approached the women, who had pulled the undrivable car over to the side of the highway and offered to take them back to a nearby shopping center to call for assistance. The women accepted the ride.

While Wendy was talking to her mother, Dickens saw money in her purse. He suggested to Cooey and the other man that the three of them rob Wendy and Dawn. Cooey replied, “I’m game if you’re game.” This agreement came after Cooey himself spoke with Mrs. Offredo and promised her that nothing bad would happen to the girls. The group then left the deserted mall.

When they realized Cooey was not returning to the site of the “accident,” the women asked Cooey where he was going. He pulled out a knife and ordered them to “shut up.” He then gave the knife to Dickens, who opened it and held it on the women. Dawn gave up her purse, while she and Wendy asked their assailants not to hurt them. Cooey told one of his friends to tie Dawn’s hands, whereupon the man demanded to be let out of the car, and Cooey let him out. He did not call police to report the abduction, however.

Cooey drove the car to an isolated wooded area and the victims were forced to exit the car. Cooey raped McCreery while Dickens raped Offredo. Then, Cooey raped Offredo while Dickens raped McCreery. During this time, Cooey called out Dicken’s name (”hey Clint, put on the Bad Company tape,” he said.), which infuriated him. Dickens grabbed a billy club which had been placed on the hood of the car and began hitting a tree.

It was at that point that the men decided the girls had to die.

Cooey grabbed Offredo in a choke hold, strangling her until she was unconscious. Once she was on the ground he tied her feet together with a red bandana. Dickens clubbed McCreery with the billy club when she attempted to escape. She eventually slumped to the ground. Cooey tied a shoestring around Offredo’s neck and Dickens tied another around McCreery’s. During this episode, both victims were beaten in the head with the billy club and McCreery was stabbed in the neck.

A few days following the murders, an informant called Akron detectives telling the police that Cooey was trying to sell jewelry belonging to the victims. The informant named the street Cooey lived on. The police immediately set up surveillance around Cooey’s house while two warrants were being obtained– one to search and one to arrest Cooey. Cooey attempted to leave the house and he was arrested. Items were removed from his person and from his grandmother’s automobile. Thereafter, the house was searched and various items were removed.

Dickens, the juvenile, was tried as an adult. He was found guilty, and sentenced to life imprisonment. Cooey waived his right to a trial by jury and a panel of judges was assigned to try him. Cooey was found guilty of two counts of aggravated murder, two counts of aggravated robbery, two counts of kidnaping, one count of felonious assault, and four counts of rape by the panel of judges, and sentenced to death.

The dance of the appellate lawyers began in 1987 and the convictions were upheld on direct and post-conviction appeals.

In 2000, a Sixth Circuit panel denied Cooey’s habeas corpus petition. After expressing its tentative conclusion that Cooey had failed to make a substantial showing of the denial of a constitutional right, the judges directed him to show cause why it should not deny his application for permission to appeal that decision. Attached to the show cause order was an appendix summarizing the panel’s tentative findings with respect to each issue raised in the appeal. The appendix also detailed numerous instances of Cooey’s careless (or worse) brief writing. The appellate panel found that “some of Cooey’s claims were irrelevant, his case law inapposite, and his factual assertions erroneous,” a district court judge would write later.
In June 2003 after an execution date was set by the Ohio Supreme Court, the Ohio Parole Board conducted a clemency hearing and recommended Governor Bob Taft deny clemency, which he did.

On June 10, 2003, a little over one month before Cooey’s execution date, the Chief Deputy Clerk of the Sixth Circuit Court of Appeals mailed letters to the two attorneys who had represented Cooey in his habeas appeal, advising them that the Court of Appeals had removed them as his appellate counsel.

“The court has authorized me to tell you that you will not receive any new appointments on appeal or extensions of appointments under the Criminal Justice Act in capital cases,” the letters read. “This reflects the court’s dissatisfaction with both the quality of the appellate briefs and the oral argument in Cooey v. Coyle and the amount of the attorney ’s fees which were paid to you and [co-counsel] for Mr. Cooey’s representation.”

The Clerk then asked the Ohio Public Defender to find counsel to represent Cooey in the event that he intended to initiate any further federal litigation.

The Public Defender worked diligently to find someone, but reported back to the court on July 12, 2003 — 12 days before Cooey’s scheduled execution — that no one would take the case.
On Wednesday, July 16, 2003, Cooey filed in district court a pro se “Motion to Appoint Counsel in this Death Penalty Case in Which Execution is Set for July 24, 2003.” The federal judge appointed the Ohio Public Defender’s office to represent Cooey.

On July 22, 2003, Cooey filed a Rule 60(b) motion and a motion for stay of execution. Federal Rule of Civil Procedure 60(b) provides a party with relief from judgment under certain circumstances: “On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect…or … any other reason justifying relief from the
operation of the judgment.”

On July 23, the families of Wendy Offredo and Dawn McCreery gathered in Lucasville, Ohio, site of the execution chamber where the next day, Richard Cooey would pay the ultimate price for his crimes.

Fate had another cruel twist in store for them.

The Rule 60(b) motion was made to Judge Dan Aaron Polster, who wrote just 13 hours before Cooey was to die, “The underlying premise of the stay of execution is that the Court of Appeals’ letters to Cooey’s prior appellate habeas counsel have cast a cloud over the integrity of the habeas process, and that it would be unseemly for Cooey to be executed while that cloud exists. Rule 60(b) relief is ‘reserved for those cases of injustices which, in certain instances, are deemed sufficiently gross’ and to prevent grave miscarriages of justice. The Court finds that the extraordinary circumstances in this case could warrant Rule 60(b) relief. It is for the Sixth Circuit to make the ultimate determination as to the meaning and import of its June 10, 2003 letters…I have had 48 hours to grapple with this unprecedented situation.

Ultimately, I have concluded that the integrity of the federal courts would be impugned if the State of Ohio executes Richard Cooey tomorrow.”

Polster knew the character of the man he was sparing.

“Here, Richard Cooey brutally raped and murdered two women. He and his associates set up this heinous crime by standing on a bridge and dropping a concrete chunk through the windshield of a randomly selected car as it passed underneath,” he wrote. “Cooey and his associates then tortured and murdered the two victims under the guise of offering assistance. A state that elects to establish a system of capital punishment presumably has in mind such defendants.

“Reasoned and thoughtful people may debate the significance of the life of Richard Cooey. The function of federal habeas corpus, however, is to ensure the integrity of a state’s judicial process, particularly when that may culminate in a defendant’s execution. It is our responsibility as federal judges to ensure the integrity of our own process, and that is why I have stayed Cooey’s execution.”

Eventually, the Sixth Circuit ruled that Cooey deserved another chance to demonstrate that his appellate lawyers were ineffective. His second round of post-conviction appeals is working its way through the state system.

Update

Richard Cooey continues to wring every last drop of justice from the system that has long-acknowledged that he is a rapist and murderer. As the United States Supreme Court wrestles with the question of whether the three-drug cocktail used in lethal injections constitutes cruel and unusual punishment in violation of the Eighth Amendment, Cooey has become the lead complainant in a lawsuit currently pending in the Ohio court system that the state’s lethal injection procedure violates the state’s Constitutional ban on cruel punishments.

That’s his right, of course.

However, I think it is in Cooey’s best interests to heed the words of the Roman historian Valerius Maximus: Lento quidem gradu ad vindictam divina procedit ira, sed tarditatem supplicii gravitate compensat.

(The divine wrath is slow indeed in vengeance, but it makes up for its tardiness by the severity of the punishment.)