In a 4-3 decision, the state Supreme Court rejected the appeal of death row inmate Romell Broom, who had argued that a second turn at capital punishment would violate his constitutional protections against double jeopardy and cruel and unusual punishment.
Broom was found guilty of aggravated murder in 1985 in connection with the rape and death of 14-year-old Tryna Middleton.
In 2009, a medical team at the Southern Ohio Correctional Facility was unable to access a vein to administer a lethal injection after at least 18 puncture attempts, prison officials said. Former Gov. Ted Strickland then granted an emergency reprieve.
An appeal from Broom's legal team that challenged further execution attempts by the state wound its way through the state court system before it was ultimately denied on Wednesday.
"Because Broom's life was never at risk since the drugs were not introduced, and because the state is committed to carrying out executions in a constitutional manner, we do not believe that it would shock the public's conscience to allow the state to carry out Broom's execution," Justice Judith Ann Lanzinger wrote in the majority opinion.
Broom's lawyers, Timothy F. Sweeney and S. Adele Shank, expressed disappointment with the divided decision.
"Mr. Broom has been informed of the decision and remains in good spirits," the statement said. "He looks forward to pursuing the additional legal remedies available to him."
No date for Broom's second execution attempt has been set, according to his lawyers. The execution schedule for Ohio's other death row inmates has been delayed as the state works to secure a supply of the necessary drug.
In its appeal, Broom's legal team argued that the inmate, "by virtue of the two hours of painful efforts to insert needles into his body," had already received punishment and that a second attempt at execution would be in violation of the double jeopardy protection against multiple punishments for the same offense, according to the opinion.
The Supreme Court disagreed, saying the botched execution attempt had stopped short of a fulfilled punishment.
"The execution commences when the lethal drug enters the IV line. In this case, because the attempt did not proceed to the point of injection of a lethal drug into the IV line, jeopardy never attached," Lanzinger wrote.
A second argument, that a retried execution would constitute cruel and unusual punishment, was also rebuffed by a majority of the court.
"The state's intention in carrying out the execution is not to cause unnecessary physical pain or psychological harm, and the pain and emotional trauma Broom already experienced do not equate with the type of torture prohibited by the Eighth Amendment," Lanzinger wrote.
Sweeney said Wednesday that it was too early to say whether specific appeals would be made but outlined two options -- including taking the case to the U.S. Supreme Court and a pending 2010 federal petition, which had previously been stayed, to allow for the appeal to go through the state court system.
In a dissenting opinion, Justice William M. O'Neill said the description of the first botched execution "chills me to the core. "
"I believe as a moral and constitutional matter that subjecting Broom to a second execution attempt after even one extremely painful and unsuccessful attempt is precisely the sort of 'lingering death' that the United States Supreme Court recognized as cruel within the meaning of the Eighth Amendment 125 years ago," O'Neill wrote.