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Court allows Ohio executions to resume

By Bill Mears, CNN Supreme Court Producer
  • Federal appeals court denies death row inmate's request for a stay of execution
  • Ohio to resume executions in December with new one-drug method of lethal injection
  • Executions halted in Ohio in September after botched attempt on another prisoner
  • One-drug method has never been tried before on U.S. death row inmates

Washington (CNN) -- A federal appeals court on Wednesday granted Ohio's request to resume scheduled executions next month when the state will use a new, untested one-drug method of lethal injection.

The 6th U.S. Circuit Court of Appeals denied death row inmate Kenneth Biros' request for a stay of execution. Biros' attorneys had argued Ohio's three-drug intravenous cocktail -- previously used to execute capital inmates -- amounted to cruel and unusual punishment.

The judges concluded Biros' argument was essentially moot since the state announced last week it will change its protocol and rely on one drug.

"In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure," the three-judge panel wrote. "Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect."

There was no immediate reaction to the ruling from Biros' attorney, Timothy Sweeney. The defense team is expected to contest the scheduled December 8 execution further.

Both Gov. Ted Strickland and federal courts had halted capital punishment in Ohio in September after a botched attempt to execute another prisoner, Romell Broom. The prison staff could not find a suitable vein for the injections.

Three other planned executions were delayed.

Ohio's new one-drug method has never been tried before on U.S. death row inmates. It relies on a single dose of sodium thiopental injected into a vein. A separate two-drug muscle injection would be available as a backup. The one-drug method has been used to euthanize animals.

Sodium thiopental, at a much lower dosage, is the first ingredient in the three-drug method -- which is used in all but one of the other 34 states with the death penalty. Some death penalty opponents have said that sodium thiopental, which renders a prisoner unconscious, can wear off too quickly, and that some prisoners would be awake and able to feel pain as the procedure continues.

Sweeney, Biros' attorney, also had argued the new one-drug method was unconstitutional. In an appeal, he wrote it would amount to "human experimentation, pure and simple."

Biros, 51, was convicted of the brutal 1991 murder of Tami Engstrom near Warren, Ohio. He met the woman at a bar and offered to drive her home and later admitted robbing and trying to rape her. Prosecutors said Biros then cut up her body and spread parts of it around northeast Ohio and Pennsylvania. He said he acted in a fit of drunken rage.

The governor announced two months ago he would delay the executions of two other men until March at the earliest. Broom's execution has not been rescheduled.

"Additional time is needed to fully conduct a thorough and comprehensive review of an alternative or backup lethal injection protocol that is in accordance with Ohio law," Strickland said when announcing the delays.

Other states and judges have applied different standards over whether an inmate can make a challenge to the method of execution.

Executions this decade in Florida and Ohio were rife with problems, taking much longer than expected when technicians had trouble inserting needles into prisoners' veins.

In 2006, the U.S. Supreme Court ruled that prisoners could make last-ditch legal challenges to the method of execution, using claims that they would suffer a painful death. Last year, the justices ruled Kentucky's lethal injection protocols to be constitutional. Officials there had argued the process was similar to those in other states.

Ohio has put 32 people to death in the past decade since executions resumed in the state. There have been 48 executions nationwide this year.