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I guess you can’t blame the guy for trying. Someone sentenced to death generally does not want to die, and I have seen all sorts of creative appeals in an attempt to get around the death penalty sentence.

Perhaps the most creative of all was recently put forth by Cincinnati inmate Richard Cooey, whose claim was that he was too overweight to be executed.

In the state of Ohio, lethal injection is used to terminate life. Cooey was 5-foot-7, 265 pounds. He was also a double murderer.

Cooey’s appeal was denied, and he was put to death on Oct. 14. The argument here is that due to Cooey’s excessive weight, the prison staff would be unable to find a good vein. This could then could lead to a longer, slower death for Cooey, which would constitute cruel and unusual punishment.


This execution has been a long time in coming, as Cooey’s crime took place in 1986. At that time, he killed two students who were attending the University of Akron. Cooey and a co-defendant raped and murdered two students.

The co-defendant was only 17, so he received life in prison. Cooey was 20, so he received the death penalty.

It should be noted that Ohio is not particularly well known for having its executions go smoothly. There had not been an execution in the state of Ohio since mid-2007. The inmate was named Christopher Newton, and he was also a big man. There were problems finding veins and putting IVs in his arm. Those problems lead to a delay of his execution for about two hours. There was another similar problem with an execution in 2006.

Along with his obesity claim, Cooey also argued that the state’s use of a three-drug execution cocktail could lead to a slow and painful death. He wanted the state to be forced to use a single drug and asked that his execution be stayed for that reason as well.


The Ohio State Supreme Court didn’t even have to get to the merits (or lack thereof) of these two arguments, as the court decided Cooey and his attorneys had missed the deadline for the filing of appeals.

His last words were: “you (expletive) haven’t paid any attention to anything I’ve said in the last 22 1/2 years, why would anyone pay attention to anything I’ve had to say now?” And that was it.

Family members of one of the victims attended the execution, and they were disappointed that there was no apology forthcoming.

While the Ohio State Supreme Court never got to the merits of these claims due to the blown deadline, please allow me to.

Are you kidding?

If the obesity claim were to have been granted, you would be seeing a whole lot of prisoners doing a whole lot of eating. In fact, Cooey had gained 75 pounds since being placed on death row. Must be that good down-home prison cooking.

If Cooey’s appeal were to have been granted and become law, we would see a whole lot of food being consumed and a whole lot of exercise opportunities being turned down in the Ohio prison system.

Body mass index is generally used to determine whether one is a suitable candidate for gastric bypass surgery. If Cooey had his way, it would have become a key in determining whether a person should be executed.


Whether you are for or against capital punishment, I would hope you would agree that if we are going to have it, it ought to be applied in an equitable manner. Cooey’s claims had nothing to do with fairness; they were ridiculous. If we are going to keep it, let’s keep it, and if we’re going to get rid of it, let’s get rid of it, but while we have it, it ought to be applied fairly.

An inmate wanting to pound down the cheeseburgers in an attempt to make his arms too big for one to find a vein is not a good reason to cancel an execution.

 CHARLES J. UNGER is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth. He may be reached at (818) 244-8694 or at