COLUMBUS, Ohio (AP) — A condemned killer of two awaited word Monday on his final appeals ahead of his scheduled execution later this week.
Death row prisoner Gary Otte was sentenced to die for the Feb. 12, 1992, killing of Robert Wasikowski and the Feb. 13, 1992, killing of Sharon Kostura. Both slayings took place in Parma, in suburban Cleveland.
The state plans to execute Otte, 45, with a combination of three drugs.
A Cuyahoga County appeals court heard arguments Monday that Otte should be allowed to challenge his execution as unconstitutional because of his age at the time of the crime.
Otte's attorneys base their request on a ruling last month by a Kentucky court, which said executing inmates under 21 at the time of their crime amounts to cruel and unusual punishment.
The U.S. Supreme Court has previously outlawed the execution of anyone under 18 at the time of the crime. Otte was 20 at the time of his crime.
Cuyahoga County prosecutors oppose the argument, saying Otte purposely waited until just weeks before his execution to make his argument, knowing a delay would be necessary.
If carried out, Otte's execution would be the second this year. Ronald Phillips was put to death by lethal injection in July for raping and killing his girlfriend's 3-year-old daughter in Akron in 1993.
That was the first execution in Ohio since 2014, a delay caused by difficulties in finding drugs to use in capital punishment.
During that January 2014 execution, inmate Dennis McGuire gasped and snorted during the 26 minutes it took him to die, the longest since Ohio resumed capital punishment in 1999.
Ohio abandoned the two-drug procedure it used on McGuire and then searched in vain for months for alternatives. Drugs traditionally used in executions have become harder for states to purchase as drugmakers make them off-limits for capital punishment.
In October, the state announced it had acquired supplies for a new three-drug combination. A secrecy law shields any information about the source of those drugs.
The first drug in McGuire's execution, a sedative called midazolam, was also used in problematic executions in Arizona and Oklahoma.
But midazolam has also been used in executions without discernible problems, including in Phillips' July execution.
Otte and other inmates continue to challenge the use of midazolam, saying it may not render prisoners so deeply unconscious that they avoid suffering serious pain when the last two drugs are administered.
Lawyers say observations by an expert witness showed Phillips' executioners didn't carry out a "sufficient consciousness check" after midazolam was administered.
The state argues there was no evidence that Phillips wasn't properly anesthetized during his execution.
Phillips died about 10 minutes after giving his final statement. He showed no signs of distress. His chin dropped and his belly heaved slightly as the lethal drugs were administered.
Federal Judge Michael Merz rejected Otte's arguments Friday, saying he still hasn't proved he would experience pain after being injected with midazolam. Otte won't appeal the ruling, federal public defender Vicki Werneke said Monday.
In Otte's criminal case, authorities said he asked to go inside Wasikowski's apartment to use the phone and then shot the 61-year-old and stole about $400.
The next day, Otte forced his way into Kostura's apartment in the same building, shot the 45-year-old and then stole $45 and her car keys.
Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus.