Death Penalty Ohio

In this November 2005 file photo, Larry Greene, public information director of the Southern Ohio Correctional Facility, demonstrates how a curtain is pulled between the death chamber and witness room at the prison in Lucasville, Ohio. A federal appeals court on Thursday barred Ohio from using a three-drug cocktail to conduct executions.

(The Associated Press)

CINCINNATI, Ohio -- A federal appeals court on Thursday barred Ohio from using a certain three-drug cocktail to execute death-row inmates, dealing the state another setback as it seeks to resume executions.

The panel from the 6th U.S. Circuit Court of Appeals ruled 2-1 that a preliminary injunction issued in January by federal Magistrate Judge Michael Merz of Dayton should stand for the time being. The appeals court panel affirmed Merz's finding that there is a "substantial risk of serious harm" in using midazolam, a sedative that is one of the three drugs the state endeavors to use in executions.

The 6th Circuit also barred the use of any cocktail that contained potassium chloride, which stops the heart, and any drug that acts as a paralytic agent. The state had previously told a judge in a separate case that it would no longer execute inmates using potassium chloride or paralytic agent pancuronium bromide, yet the state had proposed using both in the new cocktail.

Two states, Arizona and Florida, have discontinued the use of midazolam.

Ohio hasn't executed anyone since January 2014, when it took killer Dennis McGuire 25 minutes to die from a previously unused execution drug combination. McGuire was administered a cocktail that included midazolam. Witnesses said he appeared to gasp several times during his execution and made loud snorting or snoring sounds.

State officials and the courts halted executions last October until the state picked the new drug cocktail. The challenge to the use of the new cocktail was made by death row inmates Gary Otte, Ronald Phillips and Raymond Tibbetts. Phillips is the first inmate scheduled to die, with an execution date set for May 10. Thursday's ruling puts that date in question.

The 6th Circuit's ruling could also mean further delays for other executions that were already put off due to Merz's ruling.

Allen Bohnert, a plaintiff's attorney on the case, praised the 6th Circuit's ruling in a news release.

"Ohio should conduct no more executions until it is able to develop a lethal injection protocol that will comport with all state and federal laws," Bohnert said.

Ohio Attorney General's spokesman Dan Tierney said the office is reviewing the decision to determine its next action. Ohio Department of Rehabilitation and Correction spokeswoman JoEllen Smith said in an email that the department "remains committed to carrying out court-ordered executions in lawful and humane manner."

The state argued on appeal that Merz erred in some of its findings of fact in his opinion. Judge Karen Nelson Moore, a Bill Clinton appointee, disagreed, noting that while she wished Merz had made "more specific findings of fact," the state had pushed for a speedy resolution to the case, as execution dates were rapidly approaching.

The majority also takes note of the "directly contradictory positions" the state took in trying to use two drugs it previously said in court that it would no longer use. The judges also said the drug cocktail should be barred from use because because the plaintiffs put forth an alternative drug named pentobarbital that can be used, even though the state said it has had difficulty obtaining the drug.

Judge Raymond Kathledge, an appointee of George W. Bush, dissented from Moore and Stranch's ruling majority's ruling. He called Merz' January opinion "seriously flawed" and said it does not follow the correct legal standard that the use of the cocktail is "'sure or very likely' to cause serious pain."

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