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December 3, 2009

Biros seeking federal stay to prevent Ohio's use of new one-drug lethal injection protocol

As detailed in this new AP report,which is headlined "Ohio dismemberment killer files new delay request," Kenneth Biros has now "asked a federal judge for an emergency order to stop next week's planned execution, arguing the state is rushing too fast to use its new, one-drug lethal injection process."  Here are the basics:

Kenneth Biros asked U.S. District Court Judge Gregory Frost for the delay in a filing Thursday. The 51-year-old Biros says the untested method announced last month could jeopardize his right to an execution that does not constitute cruel and unusual punishment.  He has also challenged the one-drug method in federal court and also asked a federal appeals court in Cincinnati to delay Tuesday's execution.

The state opposes any delay, and Gov. Ted Strickland on Thursday denied Biros' request for clemency.

Some related posts on Ohio lethal injection issues:

December 3, 2009 at 05:55 PM | Permalink


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This is cheeky and in your face gall, for the lawyers of a butcher. If their licenses cannot be pulled, the family of the victim needs to bring street justice to these jokesters. Just beat their asses.

Posted by: Supremacy Claus | Dec 3, 2009 7:28:08 PM

Biros argued to the very same judge that the one-drug protocol was a viable alternative . . . .

That should estop him from litigating it now.

Posted by: federalist | Dec 3, 2009 11:28:54 PM


AP has picked up on Biros' change of litigation position . . . .

Posted by: federalist | Dec 4, 2009 12:10:17 AM

The new procedure is "untested"? How does one "test" a death penalty administration procedure?

Posted by: Bureaucrat | Dec 4, 2009 6:51:22 AM

I would think the Baze standard is stacked against the convict enough that any honest jurist would have to uphold this procedure against 8th amendment challenge. I recall seeing a piece that Ohio may have additional requirements, I would think that would be a prisoner's best chance.

Posted by: Soronel Haetir | Dec 4, 2009 8:09:46 AM

They can test the procedure by euthanizing animals. But they already do that, that's how the one-injection idea came about. Perhaps cats and dogs are inadequate test subjects for the sake of comparison. Biros should argue that the State should euthanize a chimpanzee first, due its physiological similarities, and close genetic relationship to man.

Posted by: Buffalo Bill | Dec 4, 2009 9:17:34 AM

sc, try to remember that we live in America:

In America we recognize “the right of an accused to fearless, vigorous and effective advocacy, no matter how unpopular the cause in which it is employed.” Offutt v. United States, 348 U.S. 11, 13 (1954). Thus, a criminal defense attorney "is charged with zealously advocating for his client within the bounds of the law and is deemed to best serve[] the public . . . by advancing the undivided interests of his client.” Polk County v. Dodson, 454 U.S. 312, 318-19 (1984). Remember that the the attorney’s “overarching duty [is] to advocate the defendant's cause.” Strickland v. Washington 466 U.S. 668, 688 (1984).

Posted by: anon 13 | Dec 4, 2009 11:05:02 AM

so anon, what's your view of defense counsel's shifting position on the one-drug protocol?

Posted by: federalist | Dec 4, 2009 11:14:15 AM

sc, your encouraging victims to attack the defendant's lawyers is reprehensible and probably criminal. If you are indicted, you'll need a lawyer yourself. How deliciously ironic. Having to retain a cult, criminal, commie, rat, conspirator--liberal left wing nut,rent-seeking lawyer. Remember, Sell everything you have to hire the best--. Maybe you should go pro se. That would be a show.

Posted by: anon 13 | Dec 4, 2009 11:15:27 AM

SC, "street justice" for lawyers is not a responsible call. I wish you would disavow it.

Posted by: federalist | Dec 4, 2009 11:42:57 AM

And Doug, you should remove the post . . . .

Posted by: federalist | Dec 4, 2009 11:43:36 AM

federalist, my view is that the defense attorney is making a desperate argument that is totally uphill; and that the state has a powerful rejoinder pointing out that the lawyer has put forward contradictory positions. But that's the way it goes.

Posted by: anon 13 | Dec 5, 2009 3:55:31 PM

Federalist - Biros's attys are not making inconsistent arguments at all, in light of how the State completely bolluxed up the execution attempt of Broom a few months back. One drug injected in a way that didn't require the distinct possibility of being a human pincushion for two hours or so beforehand might be acceptable to them, but not so long as the same people and techniques are used. That's the problem, if I understand correctly. Nothing changed in the new protocol in that regard. Other states have managed to do it correctly. Ohio has a history to the contrary, unfortunately.

Posted by: DAB reader | Dec 5, 2009 7:00:10 PM

DAB reader, take off the clown suit. They're challenging more than just the problems with the Broom execution . . . .

Posted by: federalist | Dec 7, 2009 11:33:58 AM

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