COLUMBUS (AP) — Three condemned killers with upcoming execution dates asked the U.S. Supreme Court on Tuesday for a delay while they continue challenging Ohio’s new lethal injection method.
Lawyers for the death row inmates argue the procedure’s first drug, the sedative midazolam, creates an unconstitutional risk of pain by not rendering prisoners deeply unconscious before two other drugs kick in.
Midazolam has been used in some executions that were problematic, including in Ohio, Arkansas and Arizona. The request for the delay was made to Justice Elena Kagan, who handles such appeals for Ohio.
Among the death row prisoners is Ronald Phillips, scheduled to die July 26 for the 1993 rape and killing of his girlfriend’s 3-year-old daughter in Akron.
Phillips’ attorneys say they need time to appeal a lower court decision allowing Ohio to use the new method. The other drugs are rocuronium bromide, which paralyzes inmates, and potassium chloride, which stop their hearts.
The attorneys want the delay because they believe the full Supreme Court will take their appeal of last month’s ruling by the 6th Circuit Court of Appeals. That’s because that decision runs counter to previous rulings by the high court, and because it “involves an issue of recurring and national importance,” the attorneys said in Tuesday’s filing.
The state is expected to oppose the request.
Phillips also has separate federal appeals pending that argue his age at the time of the crime — he was 19 — should have been a consideration for mercy. The nation’s high court already has banned the execution of people under 18.
In their June 28 ruling, the appeals court judges concluded inmates had demonstrated Ohio’s execution protocol might cause pain in some people, but said that wasn’t enough.
“Different people may have different moral intuitions as to whether — taking into account all the relevant circumstances — the potential risk of pain here is acceptable. But the relevant legal standard, as it comes to us, requires the plaintiffs to show that Ohio’s protocol is ‘sure or very likely’ to cause serious pain,” and they fell short, the court said.
The other inmates requesting a delay are Gary Otte, scheduled to die Sept. 13 for a 1992 double killing in Parma, in suburban Cleveland; and Raymond Tibbetts, scheduled to die Oct. 18 for fatally stabbing a man in Cincinnati in 1997.
Also Tuesday, a federal judge denied a request by the inmates’ attorneys to allow extra witnesses of upcoming executions. Attorneys wanted two “appropriately trained persons” such as a nurse anesthetist and a lawyer to ensure the execution is carried out in a constitutional manner.
Judge Michael Merz said there’s no evidence a nurse anesthetist would be able to evaluate an inmate’s consciousness from the viewing room. Merz also said the person would be perceived as biased coming from the inmate’s legal team.
Merz also said allowing lawyers of Ohio inmates with future execution dates to witness lethal injections could open the door to requests by attorneys from other states to also witness Ohio executions.
Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus. His work can be found at http://bigstory.ap.org/content/andrew-welsh-huggins.