CINCINNATI (CN) – An attorney for Ohio argued before the Sixth Circuit on Tuesday against a lower court order that prevents the state from executing three death-row inmates.
U.S. District Court Judge Michael Merz ruled in January that the state’s current three-drug cocktail creates a “substantial risk of serious harm” during the execution process and issued a stay until a credible substitute can be obtained.
Attorney Eric Murphy criticized the lower court decision, and said Judge Merz made his decision based on uncertainty as to whether the execution drug midazolam renders an inmate “insensate to pain” during an execution.
Murphy, on behalf of the state, cited the 2015 U.S. Supreme Court decision in Glossip v. Gross, and said that the “logical response” to Merz’s decision is that “the midazolam procedure is either constitutional or it isn’t.”
Glossip – a 5-4 decision in the nation’s highest court – found that Oklahoma’s lethal injection procedure, and specifically the use of midazolam, does not violate the Eighth Amendment.
Attorney Erin Gallagher Barnhart argued on behalf of the plaintiffs, several death row inmates, and said Ohio’s procedures vary from the one approved by the Supreme Court in Glossip.
She cited several safeguards used during Oklahoma’s executions, including the presence of a physician and the use of an electrocardiograph to determine whether an inmate is unconscious prior to proceeding with the execution.
Murphy argued that in order to bar the use of midazolam in executions, there would have to be a medical “consensus” that the drug failed to render inmates insensate to pain, a point beleaguered by Sixth Circuit Judge Jane Branstetter Stranch.
“Anybody who’s litigated knows each side gets its own experts,” she said, “and those experts won’t agree. How many horrific executions do we have to go through [before realizing the inmate is feeling pain]?”
Judge Stranch then cited witness testimony regarding movements made by inmates during their executions – including gasping for air and clenching their fists – and asked if these movements prove the inmates are still conscious.
The state’s attorney argued that “movements during an execution are not dispositive” of an inmate being unconscious, and cited testimony from several witnesses – including prison officials – who claimed to have seen such movements during several executions.
Barnhart disagreed, and cited testimony from the inmates’ expert witness, who claimed “movement announces [the regaining] of consciousness.”
Sixth Circuit Judge Raymond M. Kethledge peppered Barnhart with questions throughout her argument, and repeatedly said he has been “grappling with” the district court’s decision for several weeks.
“Speaking candidly, there was not much reasoning [in the opinion],” he said, adding that most of the 119-page opinion was simply a recitation of each side’s argument.
Judge Kethledge said he noticed an “analytical gap” in the decision, which he said was based on “uncertainty, instead of certainty, about midazolam. And that is a mistake, if it happened.”
Barnhart commended Judge Merz on his ability to process the voluminous amount of testimony – which was gathered during a five-day hearing – although she did admit that it could have been delivered in a more polished opinion.
Dennis McGuire – who choked and gasped for air for nearly 25 minutes during his execution – was the last inmate executed in Ohio.
McGuire was executed in January 2014 using a then-untested sedative combination of midazolam and hydromorphone, which left the inmate semi-conscious during the latter portions of the execution.
The state says it has petitioned the U.S. Drug Enforcement Agency for a license to import compounded pentobarbital, which could be used in place of the midazolam, but the inmates’ attorney doubted the veracity of the state’s claims.
Barnhart said Ohio failed to provide testimony about its efforts when it had the chance during the district court proceedings.
“It is my belief they haven’t tried to get the barbiturates,” she said.
Sixth Circuit Judge Karen Nelson Moore rounded out the panel.
While discussing possible alternatives to midazolam, Judge Moore asked the state’s attorney if it would consider using a heroin overdose to execute an inmate, if he requested it.
Murphy was slightly stunned by the question, but responded that the illegal nature of the drug, coupled with it being “completely untested,” would prevent such a solution.
No timetable has been set for the Sixth Circuit’s ruling.
Questions about Ohio’s executions have made it to the Cincinnati-based appeals court before. In November, the Sixth Circuit approved an Ohio law shielding the names of companies that sell lethal injection drugs to the state, finding it does not tread on free-speech rights.
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