An inmate whose execution was put on hold as he argued that Ohio's method of lethal injection was unconstitutional can die as scheduled next month, now that the state has instituted a different method, a federal appeals court ruled Wednesday.
Kenneth Biros would be the first inmate executed under the state's change from a three-drug intravenous lethal injection to a one-drug IV injection, with a two-drug muscle injection serving as a backup. A federal district judge had temporarily delayed his execution after an unsuccessful attempt to execute another inmate.
"In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure. Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect," the appeals court wrote.
Biros could still bring a new challenge requesting a stay of execution under the new protocol, the court noted. He also could appeal to the full 6th Circuit or to the U.S. Supreme Court.
Biros' attorney, Tim Sweeney, said all three options will be considered over the next few days.
"We appreciate the court ruling as quickly as it did because it gives us some time to step back and decide what options are available," Sweeney said.
Sweeney had argued that conducting the execution under the new protocol would be "human experimentation, pure and simple."
State Public Defender Tim Young, whose office has represented other death row inmates in the district court case involving Biros, said he is disappointed in the ruling on a "yet-to-be-changed protocol that has yet to be published."
"As of today, there is no 'new' protocol," he said in a statement.
The state announced Nov. 13 that it was changing its protocol, effective Nov. 30, after the Sept. 15 attempt to execute Romell Broom, who said in an affidavit that executioners painfully hit muscle and bone during as many as 18 attempts to reach a vein.
The governor ended up delaying Broom's execution when a vein could not be found.
Once the state receives official paperwork on the appeals decision, it will move forward with preparations for Biros' execution, planned for Dec. 8, said prisons spokeswoman JoEllen Smith.
Biros, now 51, stabbed and beat 22-year-old Tami Engstrom 91 times, then strangled her in 1991 after offering her a ride home from a bar near Warren in northeastern Ohio. An autopsy found 91 beating and stab wounds were inflicted before her death, and then she was stabbed five more times before she was dismembered with two knives, said Trumbull County Prosecutor Dennis Watkins, who prosecuted Biros.
A search based on Biros' information led to body parts that had been buried, and some dug up and reburied, in northeastern Ohio and in northwestern Pennsylvania.
Biros acknowledged killing her, saying he did so in a drunken rage.
Watkins said Wednesday that Biros also gave other versions of what happened, including that Engstrom fell and hit her head.
"His versions are so absurd that anyone could look at the evidence and conclude that this was not a crime done in a drunken rage," Watkins said. "This was torture, and the pain he inflicted was beyond description."
During the Broom execution process, Ohio took the unusual move of asking a doctor to help an execution team locate an inmate's vein during unsuccessful preparations for a lethal injection.
Physicians are called on to attend to medical needs of condemned inmates but are not used for executions, Smith said.
Dr. Carmelita Bautista of West Virginia was working at the infirmary of the state prison in Lucasville on Sept. 15 when prison staff asked her to try to find a useable IV injection site for the execution of Broom.
Smith said she is unaware of a doctor being asked for such assistance in the past and that there are no plans to do so in the future.
"This doctor was sought after for advice on what to do in moving forward with the process," Smith said. "She was not part of the execution process. It was all part of preparation for the execution process."
The request for a doctor's assistance is not referenced in a timeline kept during the execution process. Such logs do not record names of those involved, and Smith said the staffer recording events may not have been aware the doctor was summoned.
Doctors are generally discouraged by ethical and professional medical rules from participating in executions.
Associated Press writer JoAnne Viviano contributed to this report.