COLUMBUS, Ohio (AP) — Descriptions of the repeated rising and falling of an inmate's stomach weren't enough to stop his execution under current legal precedent governing lethal injection in Ohio, a federal judge said in explaining his decision not to intervene.
It was also likely too late to act by the time attorneys for inmate Gary Otte reached him by phone during the execution on Sept. 13, Judge Michael Merz said in a ruling on Saturday.
The description of Otte's reaction to the first execution drug was not enough to show he "was experiencing unconstitutionally severe pain," the judge said in a 5-page ruling.
Otte, 45, was put to death for the 1992 murders of two people during robberies over two days in suburban Cleveland.
After the first drug was administered — the sedative midazolam — Otte's stomach rose and fell repeatedly over the next couple of minutes. It was similar to the rising and falling of inmates' stomachs and chests seen in past executions using a different drug, though Otte's movement appeared to go on longer.
Carol Wright, a federal public defender representing Otte, also said she saw tears on his face and he was clenching his hands, which indicated to her he was suffering.
When Otte's stomach began to rise and fall, Wright tried to leave the witness room in the death house at the Southern Ohio Correctional Facility to call another attorney in a different part of the prison.
Wright said execution policy should have allowed her to leave right away. But a spokeswoman for the state's prison system said once Wright's identity and intentions were confirmed, she was allowed out.
Wright "is reporting that there were signs that Mr. Otte was conscious, crying, clenching of the hands, heaving at the stomach," Allen Bohnert, another federal public defender, told Merz by phone at 10:48 a.m. that morning, according to a transcript of his call to the judge. The execution began at 10:40 a.m.
After listening to the attorneys' descriptions of the execution, Merz declined to stop the procedure.
The descriptions weren't enough to override an appeals court ruling this past summer stating that the likelihood of pain after the injection of the sedative midazolam didn't violate the constitution, Merz said in the Sept. 16 ruling.
Immediately after the execution, Wright said attorneys will continue to challenge the use of midazolam. They said even at a massive dose of 500 milligrams it won't render inmates so deeply unconscious that they won't feel pain from the two subsequent drugs, which paralyze inmates and stop their hearts.
The next execution is Nov. 15, when Ohio plans to put Alva Campbell to death for car-jacking and killing 18-year-old Charles Dials in 1997.
Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus