Lethal injection challenged

Published 12:00 am Monday, April 7, 2008

The Associated Press

ELYRIA (AP) — A judge holding hearings on the constitutionality of Ohio’s lethal injection procedure will hear testimony from two anesthesiologists who disagree whether the drugs used to execute prisoners cause excruciating pain.

Two men facing murder charges in northeast Ohio are challenging the lethal injection procedure, saying the drugs don’t give the quick and painless deaths required by state law.

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Mark Heath, assistant professor of anesthesiology at Columbia University, is expected to testify Monday on behalf defendants Ronald McCloud and Ruben Rivera.

“What he’s going to say is the method of lethal injection we use in Ohio — the way we go about doing it — builds in an enormously and unnecessarily high likelihood of torturing people to death,” said Jeffrey Gamso, an attorney with the American Civil Liberties Union who represents McCloud and Rivera. Each could receive death sentences if convicted in separate Lorain County murders.

The state is expected counter with expert witness Mark Dershwitz, an anesthesiologist from Massachusetts, who will testify via video conference Tuesday.

Ohio has executed 26 inmates since it resumed putting prisoners to death in 1999.

Difficulties with two executions in recent years, where the execution team struggled to find suitable veins in the inmates’ arm, have critics challenging the lethal injection method as unconstitutionally cruel and unusual punishment.

The state, which carries out executions at the Southern Ohio Correctional Facility in Lucasville, stands by its procedures.

Assistant Lorain County Prosecutor Tony Cillo expressed concerns last week that Common Pleas Judge James Burge, who is hearing the case, may have already formed an opinion on the death penalty.

Burge, a former defense attorney, represented James Filiaggi, who was executed last year for the 1994 murder of his wife. Burge said he had visited Filiaggi and urged him to join a federal lawsuit challenging the constitutionality of the lethal injection process, but he said he did so at the request of Filiaggi’s mother.

Burge said he keeps a picture of Filiaggi in his office to remind him of things he could have done differently when handling his case, which he called “my biggest failure of my 31 years of practice.”

Gamso has asked Burge to allow Ohio’s three medically trained execution team members to testify during the hearings. The state keeps their identities secret, and Burge said he would allow them to testify out of the courtroom if it was needed.

Lethal injections are on hold nationally while the U.S. Supreme Court considers a challenge in a case from Kentucky, which is among the roughly three dozen states that administer three drugs in succession to knock out, paralyze and kill prisoners.

The major criticism of the three-drug procedure is that if the executioner administers too little anesthetic or makes mistakes in injecting it, the inmate could suffer excruciating pain from the other two drugs.

Officials overseeing the execution might be unable to detect whether the dying inmate is in pain because the paralyzing drug, most commonly pancuronium bromide, would prevent any changes in expression, critics say.