Created on Monday, 13 January 2014 Written by ANDREW WELSH-HUGGINS, AP Legal Affairs Writer
COLUMBUS, Ohio (AP) — A condemned killer's attempt to stop his execution on the grounds he could experience a terrifying sensation of suffocation is the latest argument directed at whether use of a lethal drug will create an unconstitutionally cruel death.
Last year, 450-pound inmate Ronald Post argued he was so overweight he could not be put to death humanely. Double-killer Richard Cooey made a similar argument in 2004.
In 2010, serial rapist Darryl Durr argued he might be violently allergic to the state's execution drug.
Each time, U.S. District Court Judge Gregory Frost, a veteran of the state's capital punishment legal challenges, ultimately allowed the execution to proceed. In his latest ruling, he said Monday that McGuire had failed to present evidence 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.
That said, Frost acknowledged the novelty of Ohio's never tried two-drug combination, calling it "an experiment in lethal injection processes."
But until a method violates the Constitution, "The law teaches that Ohio is free to innovate and to evolve its procedures for administering capital punishment," Frost said.
The state opposed any delay, presenting evidence that disputed the air hunger scenario.
McGuire, 53, is scheduled to die Thursday for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. Attorneys haven't said if he'll appeal. He has a separate request before the U.S. Supreme Court to delay his execution on the grounds that a jury never heard the full extent of his chaotic and abusive childhood.
Post, the overweight inmate, was spared by Gov. John Kasich because of poor legal representation at trial, not his weight. He died of natural causes in prison last year. Cooey was executed in 2008 for the rape and murder of two female University of Akron students.
Durr was executed in 2010 with no apparent complications as he died.
As long ago as the 1990s, prisoners in California argued that the state's gas chamber could also produce "air hunger" in death row inmates. In 1994, a judge found that prisoners in the gas chamber were likely to suffer excruciating pain for between 15 seconds and several minutes. The state has since adopted lethal injection but lawsuits have kept it from being used.
Frost's ruling moved McGuire one step closer to execution by the two-drug method developed after supplies of Ohio's former execution drug dried up. Kasich has rejected McGuire's plea for clemency.
Last year, Frost rejected a challenge to the two-drug method 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.
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.
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.