Lethal injection’s constitutionality can be debated later, a judge says.

By Peter H. Milliken

Lethal injection’s constitutionality can be debated later, a judge says.

YOUNGSTOWN — A hearing on the constitutionality of Ohio’s lethal-injection execution method may not be needed in two capital cases here unless a jury renders a guilty verdict and recommends death for one or both defendants, a judge has said.

Judge John M. Durkin of Mahoning County Common Pleas Court has issued judgment entries concerning this matter in the cases of Antonio Jackson and Antwon Lanier, which were combined for purposes of such a hearing.

“The evidentiary hearing may not be necessary if the jury does not return a verdict of guilty as to the death specification, or if the jury returns with a verdict recommending a sentence other than the death penalty,” Judge Durkin wrote.

If a jury convicts and recommends death, “the court can then proceed with the evidentiary hearing as to the constitutionality of the death penalty as currently implemented in this state,” he added.

Lawyers for Jackson and Lanier have “timely filed all necessary motions to preserve this issue, both at trial and for appellate review, if that becomes necessary,” Judge Durkin ruled Tuesday.

Defense lawyers said a hearing on whether Ohio’s lethal-injection process is an unconstitutional cruel and unusual punishment should be held before the trials, but prosecutors argued the issue is premature prior to any conviction for a capital offense or imposition of a death sentence.

A pretrial hearing on this issue had been scheduled for July 24, but it was postponed.

Lanier and Jackson, who are scheduled to be tried separately early next year, are charged with aggravated murder in the death of Sierra Y. Slaton, whose body was found floating in McKelvey Lake on Aug. 7, 2005, shot once.

Jackson is also charged with the aggravated murder of Tahnee Jackson [no relation], who had been drowned and was found floating nude in a South Side creek Nov. 20, 2005.

Judge Durkin’s ruling follows recent decisions by his colleague Judge R. Scott Krichbaum not to hold pretrial hearings on Ohio’s lethal-injection process in two capital cases before him.

Judge Krichbaum made those rulings in the cases of Michael A. Davis, who goes on trial Oct. 6 on charges he set the Jan. 23 East Side house fire that killed six people, and Terrance Tate, who is scheduled to go on trial Nov. 3 in the fatal beating of Javonte Covington on his first birthday in April 2006.