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December 7, 2009

All systems go (for now) as Ohio prepares for first one-drug lethal injection

As detailed in this new ABC News story, Ohio is geared up "to execute a convicted killer on Tuesday using an untested method of lethal injection that no other state has ever employed." Here is more:

The planned execution of Kenneth Biros, who was convicted of killing and dismembering Tammy Engstrom in 1991, will mark the first time a lethal single-drug dose of an anesthetic has ever been used on a death row inmate.

On Monday morning, a federal judge denied a request from Biros to delay his execution until attorneys could conduct a review of the new protocol.  U.S. District Judge Gregory L. Frost said that Biros had not demonstrated "at this juncture" that the new protocol is unconstitutional.

But the judge added, "it does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio's policies and practice rise to a constitutional error."  Lawyers for Biros are scrambling to appeal the decision.

For anyone who cannot get enough of lethal injection debates, the full 191-page ruling by Judge Frost denying Biros a stay is available at this link

Based on the recent work of the Sixth Circuit in Biros's mooted appeal of the prior injection method, I will be surprised if the Circuit is going to stay matters.  But, of course, then lawyers are likely to ask SCOTUS for a stay, and I am not prepared to predict with confidence what the Justices might do.  But, barring Supreme Court intervention, Ohio may be trail blazing a new chapter of death penalty administration tomorrow morning at 10am.

Some related posts on Ohio lethal injection issues:

UPDATE:  As this morning press report details, "

options have run out for convicted killer Kenneth Biros, who will become the first person in the United States to be executed using a single-drug protocol."  Here's why:

The United States Supreme Court refused to hear a last minute appeal from Biros, 51, who is scheduled to die in Lucasville Tuesday for the 1991 murder and dismemberment of Tami Engstrom of Hubbard.

Earlier, the Sixth Circuit Court of Appeals denied Biros argument that Ohio's new one-drug procedure for executions was untested and could be a violation of the United States Constitution.  In a dissenting opinion, Judge Griffin wrote that the court's denial of Biros' appeal "appears to be a classic rush to judgment."

December 7, 2009 at 07:03 PM | Permalink


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What would the SCOTUS procedure be here? I know the circuit justice could enter a stay. Would that stay automatically lift if the court then did not take the case?

I have a hard time believing that the court would want to revisit method of execution again so soon. The only movement I could see would be even less convict friendly than Baze.

Posted by: Soronel Haetir | Dec 7, 2009 8:43:34 PM

Soronel --

The stay would remain in effect for as long as the order granting it specified. If it did not specify any duration, it would remain in effect until further order of the granting Justice or of the Court.

If the Court did not take the case, the order denying review would almost certainly explicitly vacate the stay.

Posted by: Bill Otis | Dec 7, 2009 8:53:51 PM

Several things could happen. The 3 judge panel could deny a stay, then Biros could either ask the full appeals court to stay, or ask the Circuit justice to intervene. He would then refer it to the Court for a vote. Its going to be busy all night and into the morning for everyone.

Posted by: DaveP | Dec 7, 2009 9:07:05 PM


There may be other appeals pending, but it looks like a go.

Did anyone read Frost's opinion? The writing is brutal.

Posted by: federalist | Dec 7, 2009 11:38:57 PM


I did read it. Given how the burden is entirely on the convict I'm somewhat surprised that these stays would even get entered in the first place. Either there is ready evidence that would satisfy the plurality standard from Baze or the inmate is going to lose. I fail to see where extended discovery is going to help the inmate other than wasting a bunch of time.

I am also troubled by Frost's attempts to cajole the state into providing anything more than a constitutionally adequate procedure. Either the protocol is legitimate or it is not, it should not be the place of a district court judge to present such opining.

I also still find the focus on former team member 18 disheartening. Either present some evidence that he screwed up somewhere or leave his mental state out of it.

Posted by: Soronel Haetir | Dec 8, 2009 12:28:48 AM

I also realize that I would have liked an examination of Broom by a more objective source than Dr. Heath. I don't particularly doubt his claims about the number of attempts but I do question Broom's vein condition given that I seem to recall articles expecting trouble. I still wonder how much fluid Broom ingested in the hours leading up to the attempted execution.

I also question Heath's desire for using a cut-down procedure given that such procedures have come under challenge before and would seem likely to cross Baze's prohibition of procedures with an intolerable risk of severe pain. Suggesting a cut-down almost seems like an attempt to ban execution by making it impossible to find an executioner. Frost has already rightly rejected that notion.

Posted by: Soronel Haetir | Dec 8, 2009 1:27:46 AM

Putting the burden on the convict to prove that an untested procedure won't work makes sense legally, but in practice it seems to mean that no challenge will succeed until there is another botched execution using the new protocol...

Posted by: Anon | Dec 8, 2009 9:49:53 AM

"rush to judgment"--oh good grief--Baze sets forth when a stay should be granted. It's obviously not met here.

Posted by: federalist | Dec 8, 2009 10:50:33 AM

The Foreman of the jury should be ordered to shoot the defendant on the courthouse lawn.

Posted by: mpb | Dec 8, 2009 12:44:14 PM

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