State asks federal court to deny Biros’ challenge

By Marc Kovac

COLUMBUS — The state attorney general has asked a federal court to deny a petition for rehearing Kenneth Biros’ legal challenge to Ohio’s lethal-injection methods, arguing that the court was correct to lift a stay on the Trumbull County murderer’s planned execution next week.

The filing Tuesday afternoon with the 6th U.S. Circuit Court of Appeals in Cincinnati came in response to filings late last week by Biros’ attorneys, seeking a rehearing on the matter before the full court.

Biros had sought federal intervention in his execution, arguing that Ohio’s three-drug lethal injection process was unconstitutional. But the Ohio Department of Rehabilitation and Correction changed its execution process, switching to a single-drug method.

That move prompted the federal appellate court to rule that Biros’ legal claim was moot, and it lifted a stay, giving the green light for next week’s scheduled execution.

But the federal court added in its decision last week, “Whether a stay is warranted under the new protocol is not before us at this time. Should Biros bring a new challenge on this ground, the district court and we can consider whether it has met the requirements for granting a stay, including the requirement of establishing a likelihood of success on the merits.”

The attorney general’s filing Tuesday afternoon came in response to a petition for a rehearing by Biros’ legal counsel.

In their filing Friday, legal counsel for Biros argued that the new protocol raised more questions than it answered.

According to documents, “Will these drugs bring about death? Will such a death be painless? Will such a death be quick? Will it take many minutes or many hours before death occurs? Will these drugs allow for a dignified death, or will the death be ugly and undignified as the inmate vomits all over himself and/or convulses with hallucinations caused by the powerful opiate? There is no evidence presented by the defendants on any of these important issues.”

But in its response, the attorney general’s office argued that the appellate court decision to lift the stay was appropriate.

According to documents, “The core of Biros’ suit is the alleged substantial risk of severe pain posed by the administration of the second and third drugs in the so-called three-drug protocol and therefore, in view of the state’s discontinued use of the second and third drugs, the conjectured risk of harm cannot occur in the manner alleged by the suit.”

Biros is scheduled to be executed Tuesday at the Southern Ohio Correctional Facility in Lucasville, pending any additional legal delays. Biros, 51, formerly of Brookfield, was convicted in 1991 for killing Tami Engstrom, 22, of Hubbard.

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