Federal judge refuses to stop Ohio's plans to use novel execution method

As reported in this new AP piece, it looks now like Ohio is going to be able to go forward with its first planned execution of 2014. Here is why I was not sure about this before today:

A federal judge today refused to stop the upcoming execution of a condemned Ohio killer facing a never-tried lethal injection process that the inmate’s attorneys say will cause him agony and terror.  Judge Gregory Frost’s ruling moved Dennis McGuire one step closer to execution by the two-drug method developed after supplies of Ohio’s former execution drug dried up. Gov. John Kasich and the Ohio Parole Board have both rejected McGuire’s plea for clemency.

The judge said McGuire had failed to present evidence that he would suffer breathing problems alleged by his attorneys — a phenomenon known as “air hunger” — and said the risk to McGuire is within Constitutional limits. “The evidence before this court fails to present a substantial risk that McGuire will experience severe pain,” Frost said.

The judge rejected a similar request last year by death row inmate Ronald Phillips, who was set to become the first to die by the new method until Kasich delayed his execution to study the feasibility of Phillips’ donating organs to family members.

McGuire, 53, is scheduled to die Thursday for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio....

McGuire also asked the U.S. Supreme Court to delay the execution on the grounds that the jury that sentenced him to die never got to hear the full extent of his chaotic and abusive childhood. In the lethal injection appeal, McGuire’s lawyers had asked Frost to delay the execution while they challenge the proposed two-drug system....

The state opposed any delay, presenting evidence that disputed the air hunger scenario. They called McGuire’s appeal an eleventh-hour request that was years too late....

Supplies of Ohio’s former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions. 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.

Other death penalty states are being challenged by supply shortages. 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.

The combination of drugs Ohio intends to use has never been used in a U.S. execution. They are included in Kentucky’s backup execution method, and Florida uses midazolam as part of its three-drug injection process.