Ohio dismemberment killer files new delay request

AP News
Posted: Dec 03, 2009 5:50 PM

A condemned Ohio man asked a federal judge Thursday for an emergency order to stop next week's planned execution, arguing the state is rushing too fast to use its new, one-drug lethal injection process.

Kenneth Biros said the untested method announced last month could jeopardize his right to an execution that does not constitute cruel and unusual punishment.

Biros, 51, says moving ahead with the process would amount to human experimentation with a system never used before in the United States "or any other civilized country."

Biros is concerned the method "will not result in the dignified, humane, quick, and painless death that is required by the federal and state constitutions," his attorneys said in Thursday's court filing.

Biros has also challenged the one-drug method in federal court and also asked a federal appeals court in Cincinnati to delay Tuesday's execution.

Biros killed 22-year-old Tami Engstrom near Warren in 1991 after he offered to drive her home from a bar, then scattered her body parts in Ohio and Pennsylvania.

The state opposes any delay, and Gov. Ted Strickland on Thursday denied Biros' request for clemency.

Biros isn't making arguments substantially different from those he raised about the previous three-drug method, including concerns over repeated attempts to find a usable vein, the state Attorney General said.

Even "if Ohio's procedures present the possibility that repeated attempts at IV access could occur, the resulting pain as a matter of law does not rise to the level of a violation of the Eighth Amendment," Charles Wille, an assistant Ohio Attorney General, said in a court filing Thursday.

Also Thursday, a federal judge allowed a death row inmate who survived a botched execution to attend a hearing that challenges Ohio's efforts to put him to death again.

U.S. District Court Judge Gregory Frost accepted the request by attorneys for condemned killer Romell Broom to attend the hearing in which the inmate may testify.

Frost is also considering Biros' attempts to challenge the one-drug method and delay his execution.

Broom's hearing is scheduled for next week but could be delayed because some of his attorneys are also involved in the Biros case.

Broom's lawyers have asked for a one-month delay and the state is not fighting the request.

Strickland stopped Broom's execution Sept. 15 after executioners tried unsuccessfully for two hours to find a usable vein.

The 53-year-old Broom raped and killed a 14-year-old girl in Cleveland in 1984.

The state switched to the one-drug method in November after the problems with Broom, and included a backup procedure that allows the injection of two drugs into a muscle if a usable vein can't be found.

The state also argues the one-drug method should end a five-year-old lawsuit in Ohio that claims injection can cause inmates severe suffering.

Lethal injection experts and defense attorneys for death row inmates have said the one-drug method, a single dose of an anesthetic, would not cause pain.