Ohio governor delays 8 executions as court fight continues

AP News
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Posted: Feb 10, 2017 11:35 AM

COLUMBUS, Ohio (AP) — Gov. John Kasich on Friday delayed eight executions as a court fight continues over the constitutionality of the state's lethal injection process.

Kasich's announcement postponed the execution of a condemned child killer scheduled for next week until May and moved seven other procedures months into the future.

The Republican governor said the timing of arguments before a Cincinnati federal appeals court necessitated the delay. The court is hearing Ohio's appeal of a federal judge's order finding the state's latest execution process unconstitutional.

Kasich said he's confident Ohio will win the appeal but that the court calendar didn't provide enough time to prepare for executions scheduled this month, next month and April.

"These delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions after the appeal is settled," Kasich said.

The delay also leaves open the possibility that, should the appeal reach the U.S. Supreme Court, Neil Gorsuch, President Donald Trump's nominee for the court's vacant ninth seat, will be confirmed and able to hear the case.

The delay was another setback for death penalty supporters who hoped that new supplies of drugs obtained by Ohio last year would allow executions to move forward after a three-years-plus delay.

The state has said it has enough drugs for four executions, but records obtained by The Associated Press indicate Ohio could have enough on hand to put dozens of killers to death.

Ronald Phillips, scheduled to die Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in Akron in 1993, is now set for execution May 10.

Also Friday, the Ohio Parole Board rejected a clemency request by Gary Otte, who shot two people to death in back-to-back robberies over two days in suburban Cleveland in 1992. The board cited the "heinous" nature of the killings. Kasich on Friday moved Otte's execution date from March 15 to June 13.

At issue is a federal judge's ruling last month rejecting the state's latest proposed three-drug execution method, which hasn't been used in Ohio.

As part of that decision, Magistrate Judge Michael Merz said Ohio didn't prove that the first drug in its current three-drug process, the sedative midazolam, doesn't present a substantial risk of harm.

Merz also said the possibility exists that Ohio could obtain the barbiturate pentobarbital.

Ohio says it has made numerous unsuccessful efforts to find pentobarbital. In a court filing last week, state attorneys said they asked seven other states for the drug.

The prisons agency also tried in vain to obtain the active ingredient in pentobarbital in hopes of having a compounded version made, the filing said.

The filing says Ohio asked Alabama, Arizona, Florida, Georgia, Missouri, Texas and Virginia for the drug.

"None of those states agreed to provide pentobarbital to Ohio," according to the filing, which summarized a sealed deposition by Stephen Gray, the prison agency's in-house lawyer.

The filing doesn't say when Ohio made those requests. Of the seven states, only Georgia, Missouri and Texas appear to have reliable sources of pentobarbital when needed. Those states won't reveal the source.

Executions have been on hold since January 2014 when Ohio used a never-tried two-drug combo that it then abandoned.

The prison system says a U.S. Supreme Court ruling last year permitted midazolam's use.

"Ohio has the capability to perform constitutional executions now. It should be permitted to do so," Thomas Madden, an assistant attorney general, said in Ohio's appeal.

The 6th U.S. Circuit Court of Appeals in Cincinnati has scheduled arguments for Feb. 21.

The prisons system changed its execution process because it can't find pentobarbital, said Gary Mohr, the agency's director, who said the agency is "comfortable" with its position before the appeals court.

"This is a serious responsibility, and we work hard to carry out executions in a humane manner, with the utmost respect for the law, for victims, and for justice," Mohr said in a statement provided to The Associated Press. "That commitment is unwavering."

The state also said in its filing:

— Ohio can't import pentobarbital or its active ingredient from a foreign manufacturer because the state's application to add pentobarbital to its current federal importer registration hasn't been acted on in four months.

— Even if Ohio had a license to import the drug, it hasn't identified any company that would provide it.

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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

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This story has been updated to clarify that Georgia, Missouri and Texas have reliable sources of pentobarbital, but not necessarily current supplies.