CINCINNATI — 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 still could 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.
“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 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.
The state announced Nov. 13 that it was changing its protocol, effective Monday, 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 she was stabbed five more times before she was dismembered with two knives.
