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January 7, 2014

Another new legal challenge as Ohio prepares to conduct an execution with another new protocol

As reported in this AP piece, headlined "Attorneys cite 'agony and terror' in untried execution method," Ohio has an execution scheduled for next week that is generate a new round of litigation because of a new execution method. Here are the basics:

Ohio's untried execution method, the first of its kind in the nation, will cause the condemned killer of a pregnant woman "agony and terror" as he struggles to breathe, attorneys trying to stop the execution argued in federal court.

The two-drug combination won't sedate death row inmate Dennis McGuire properly, and he will experience a suffocation-like syndrome known as air hunger, the attorneys said in filings Monday and Tuesday. The drugs were chosen because of a shortage of other lethal injection drugs.

Lawyers had also asked Gov. John Kasich to spare McGuire on the grounds that a jury never got to hear the full details of his chaotic and abusive childhood and abuse. Kasich rejected that request without comment Tuesday. The governor typically does not give a reason when he turns down clemency requests by death row inmates.

McGuire, 53, is scheduled to die Jan. 16 for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. McGuire's lawyers asked federal judge Gregory Frost to delay the execution while they challenge the proposed lethal injection system. "McGuire will experience the agony and terror of air hunger as he struggles to breathe for five minutes after defendants intravenously inject him with the execution drugs," the inmate's attorneys said in a Monday court filing.

They also said McGuire exhibits several symptoms of sleep apnea, which could exacerbate the problem. The dose planned for McGuire isn't enough to properly sedate him, meaning he'll experience "the horrifying sensation" of being unable to breathe, Harvard anesthesiology professor David Waisel said in a Tuesday filing in support of the inmate.

A message was left with the Ohio attorney general's office, which was expected to oppose McGuire's filing. Frost scheduled a Friday hearing. Supplies of Ohio's former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions. It's a challenge facing other death penalty states as well.

Missouri gave up attempts to use propofol over concerns the move could create a shortage of the popular anesthetic if the European Union, which opposes the death penalty, restricted its export. In Georgia, the state's attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.

Instead, Ohio's Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.

That combination of drugs has never been used in a U.S. execution. They are included in Kentucky's backup execution method, while Florida uses midazolam as part of its three-drug injection process.

Regular readers know that there is a long history of notable developments in Ohio as a result of federal court litigation over new execution methods. It will be interesting to watch how this round of the litigation plays out.

January 7, 2014 at 06:31 PM | Permalink

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Comments

Pure fantasy and lies by slip n fall lawyers. Get on with the execution and expand the DP to all states.

Posted by: DeanO | Jan 7, 2014 9:13:25 PM

Well,if it isn't Madame DeFarge back with us. Got some new knitting needles?

Posted by: onlooker | Jan 7, 2014 11:55:02 PM


/// " In its ruling last month, the parole board criticized McGuire's attempts over the years to evade responsibility ... It also questioned his claims of childhood abuse ...
"McGuire's crime is very disturbing in character, as it involved the rape and slaying of a nearly eight-month-pregnant woman," the board said. \\\

| " Lawyers had also asked Gov. John Kasich to spare McGuire on the grounds that a jury never got to hear the full details of his chaotic and abusive childhood and abuse." |
| "They also said McGuire exhibits several symptoms of sleep apnea, which could exacerbate the problem [of lethal injection]." |

Isn't this an example of why Americans despise the certain species of the rationalising. end-justifies-the-means attorney?

Posted by: Adamakis | Jan 8, 2014 1:08:59 PM

If you are going to kill some man, do it like a man should. Firing squad of six shoots him. Tell them to all aim for the head. If he gets hit four times in the head he will not be suffering breathing sensations and this nonsense discussed with the drugs. If you are going to be a bear, be a grizzly. And another thing. The last rites thing and the prayer. Ask him if he wants some preacher and or last rites. If he says no then do not inflict it upon him. The shooting will be enough. If you all were right about killing him he wont get into heaven anyway.

Posted by: Liberty1st | Jan 9, 2014 1:06:21 AM

I have read the same arguments through the years over and over every time a state changes the drug protocol. None of the horrible descriptions of "air hunger" or any other suffering has occurred.

Posted by: DaveP | Jan 9, 2014 3:57:58 PM

It's in front of Judge Frost--no matter what the outcome--the opinion will be a brutal read.

Posted by: federalist | Jan 10, 2014 11:12:32 PM

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