Testimony wraps in Dayton court challenge to Ohio execution protocol

Testimony finished Monday in Dayton’s U.S. District Court in the preliminary injunction hearing brought by attorneys representing three Ohio death-row inmates who are challenging Ohio’s new three-drug execution method.

Closing arguments in front of U.S. District Court Magistrate Judge Michael Merz highlighted the sides’ opposing viewpoints on medical testimony, previous court rulings and whether Ohio’s Dept. of Rehabilitation and Correction (ODRC) can change its execution protocol for any reason.

Ohio plans to use a three-drug method on Feb. 15 to execute Ronald Phillips for the 1993 rape and death of his girlfriend’s 3-year-old daughter in Akron.

Merz said his decision to grant or deny a preliminary injunction will be reviewed by the Sixth Circuit Court of Appeals and possibly the United States Supreme Court.

Merz asked attorneys to quickly get finish what he needs to review and write his opinion because “a man’s life is at stake.” Arguments about what exhibits will be admitted and other issues will be wrapped up by mid-week.

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Merz heard five days of testimony from various medical and corrections experts and execution witnesses, including from an attorney who saw the nearly two-hour execution of Arizona’s Joseph Wood in July 2014.

A key issue is the use of the drug midazolam, a sedative used in Ohio’s January 2014 execution of Dennis McGuire, who reportedly snorted and gasped during the 26 minutes before he was declared dead.

Midazolam was used in both McGuire’s and Wood’s executions, the latter of which featured big breaths and yawns, according federal public defender Dale Baich, who testified by telephone.

Baich said Arizona agreed to never use midazolam again. Baich said he’s politically opposed to the death penalty but works to see that this clients who are sentenced to death are executed in the “most safe and humane way possible.”

ODRC Managing Director of Operations Ed Voorhies Jr. testified that he agreed with the assessment that McGuire’s execution went “very well.”

Testifying last week, a member of the execution team that put McGuire to death said he “was wondering what was going on” during McGuire’s execution.

The ODRC said its execution protocol now calls for rocuronium bromide, a paralytic drug, to be the second drug given. The third drug administered is to be potassium chloride.

Plaintiffs’ attorney Erin Barnhart said ODRC execution team members are still not being trained to deal with all contingencies and the state is ignoring medical testimony.

Defense attorney Jocelyn Kelly Lowe said Ohio has trouble getting access to drugs for executions and that “the experts don’t agree.”

The Associated Press on Monday reported that, after obtaining inventory logs through a public records request, Ohio has obtained enough of the new three-drug protocol to carry out multiple executions.

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