Created on Monday, 28 October 2013 Written by ANDREW WELSH-HUGGINS, AP Legal Affairs Writer
COLUMBUS, Ohio (AP) — A condemned Ohio child killer wants his upcoming execution delayed while he fights the state's newly announced — and never tried — lethal injection process.
Lawyers for Ronald Phillips say the state purposely waited until the Nov. 14 execution grew close to make it harder for Phillips to argue against the use of two drugs injected in combination.
Phillips' lawyers asked a federal judge Monday to delay the execution while they file legal challenges.
The Department of Rehabilitation and Correction announced its switch to the two-drug injection process earlier Monday.
The state has run out of its supply of federally-regulated pentobarbital and says it couldn't obtain batches produced by a specialty pharmacy.
THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP's earlier story is below.
Ohio will use a dose of two drugs never tried before in a U.S. execution to put to death a condemned inmate who raped and killed his girlfriend's 3-year-old daughter, the state prisons agency said Monday.
The agency made the decision because it couldn't obtain a supply of its former execution drug, pentobarbital, from a specialty pharmacy that mixes individual doses for patients, prisons spokeswoman JoEllen Smith said. The agency had considered using a compounding pharmacy after its supply of federally regulated pentobarbital expired last month.
Instead, the state will use an intravenous combination of midazolam, a sedative, and hydromorphone, a painkiller, in the Nov. 14 execution of Ronald Phillips of Akron.
Those drugs already are included in Ohio's untested backup execution method, which requires them to be injected directly into an inmate's muscle. No state has put a prisoner to death with those drugs in any fashion.
Phillips, 40, was sentenced to death for killing Sheila Marie Evans in 1993 after a long period of abusing her.
Attorneys for Phillips filed documents in federal court Friday asking a judge to let them expand a current lawsuit to challenge the use of compounded pentobarbital. Now that that option off the table, an updated complaint is expected soon.
The Friday filing also challenged the Department of Rehabilitation and Correction's decision to allow its director to delegate responsibilities for some execution duties. Phillips' lawyers say that breaks an agreement the agency made previously with approval by federal Judge Gregory Frost.
Ohio's revamped execution policy calls for it to try to buy specialty batches of pentobarbital from compounding pharmacies, which mix individual doses of drugs for specific patients. If that fails, the policy calls for the use of the two-drug approach.
A plan by Georgia to use a similar specialty batch of pentobarbital has been put on hold by a federal lawsuit challenging the state prison agency's refusal to identify the compounding pharmacy that provided the drug.
The lawsuit also questions the drug's safety and effectiveness.
Compounding pharmacies are under increased scrutiny following last year's meningitis outbreak that killed more than 60 people and sickened hundreds and was linked to contaminated ingredients at the New England Compounding Center in Massachusetts.
Phillips' lawyers have pushed for mercy for Phillips, arguing he was raped and beaten by his late father as a child and grew up in a chaotic, filthy environment.
The state says Phillips long denied suffering such abuse and raised it only as his execution became imminent.