COLUMBUS, Ohio (AP) — The condemned killer of a pregnant woman waited too long to challenge the state's untried lethal injection method and hasn't shown he faces a substantial risk of harm from the two-drug process, attorneys for the state argued in court papers Thursday.
The method has been part of Ohio's execution process since 2009 — though never used — and higher courts have twice rejected claims that the drugs pose a risk of severe pain, the attorneys argued in opposing death row inmate Dennis McGuire's attempt to stop his execution scheduled for next week.
A judge will hear oral arguments in the federal case Friday.
Ohio plans to use intravenous doses of two drugs, midazolam, a sedative, and hydromorphone, a painkiller, to execute McGuire Jan. 16.
Since 2009, Ohio's execution policy has called for those same drugs to be injected into an inmate's muscle if the state's regular lethal drug didn't work. That backup method has never been used.
The state says that because courts have upheld the use of those drugs in the backup method, McGuire can't challenge their use just because they are to be given intravenously.
There is no excuse for not raising this claim years ago, "much less presenting it for the first time in an eleventh hour stay of execution," lawyers for the Ohio Attorney General's Office said in their filing.
McGuire, 53, was sentenced to die for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. The 22-year-old Stewart was newly married and pregnant.
A Harvard anesthesiologist hired by McGuire's attorneys to examine Ohio's two-drug method says McGuire will experience "agony and terror" as a result of trying to catch his breath as the drugs take effect.
The state presented evidence from its own expert that experiments have shown nothing of the sort will happen.
Late Wednesday, McGuire's attorneys filed a separate appeal with the U.S. Supreme Court, saying information about his chaotic childhood of abuse and neglect could have prevented him from being sentenced to death if it was presented at trial.
The filings argue McGuire was so malnourished as a child that his stomach was swollen and distended. He also had to frequently steal food for himself and his younger sister, the appeal said.
McGuire was physically abused by at least four different parental figures and shows signs of brain damage from head trauma, the attorneys said.
The filings say jurors who sentenced McGuire to death never got to hear the full extent of his chaotic childhood because his trial attorneys didn't properly investigate reasons he should be spared.
Instead of conducting a proper investigation, the trial attorneys chose "to rely instead on residual doubt and on truncated testimony from a few witnesses in addition to McGuire's unsworn statement," McGuire's current lawyers argue.
Even without the full picture of McGuire's life, a juror held out for 12 hours before relenting, a sign that a full investigation might have led to a different outcome, the lawyers said. In Ohio, one juror can block a death sentence by voting against it.
The state's response to that claim is expected Monday.
Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus.