Appeals court upholds Ohio killer's execution

AP News
Posted: Dec 04, 2009 6:33 PM

An appeals court on Friday refused to delay the execution of an Ohio inmate who could become the first person in the United States put to death with a single drug.

The full 6th U.S. Circuit Court of Appeals declined to hear the challenge of Kenneth Biros, who is scheduled to die Tuesday for killing and dismembering a woman he met in a bar in 1991.

A three-judge panel of the court ruled last week that the execution could proceed, because the state adopted a new method that Biros had not previously challenged. The full court upheld that decision Friday.

Biros, however, has already filed a different challenge to the new one-drug method.

One of the 6th Circuit judges said Friday that it was unlikely Biros would be successful in that new challenge. Judge Jeff Sutton said the state's decision to move to the one-drug system addresses two of Biros' primary complaints about the old method, which involved three drugs.

Biros had argued the three-drug method could cause severe pain and could lead to problems if a usable vein couldn't be found.

Biros' attorneys have argued in the past that the one-drug method would be painless. And the state's new system allows executioners to inject drugs into a muscle if a usable vein can't be located.

"That development leaves Biros with serious likelihood-of-success problems," Sutton said.

Judge Boyce Martin, an appeals court judge who would have stopped Biros' execution, criticized Sutton for commenting on an issue that wasn't before the court yet.

Biros' attorneys asked U.S. District Court Judge Gregory Frost at a hearing Friday for an emergency order delaying the execution. Lawyer Tim Sweeney said the state was rushing unnecessarily to put Biros to death with a new method and implementing a new procedure should be done in a reasonable, deliberate way.

"That doesn't mean months or years, but more than just a few days," he told Frost.

A state attorney argued Ohio took a hard look at its old system and adopted something that eliminated the risk of pain.

"Somebody has to be first," said Charles Wille, an assistant Attorney General.

"This plan is consistent with a long history of states attempting to take a very difficult social responsibility and make it less difficult," Wille said. "Above all to come up with the most humane way it can be done."