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Biros’ lethal-injection federal trial begins

Published: Tue, March 24, 2009 @ 12:00 a.m.


COLUMBUS — Condemned killer Kenneth Biros argues that a drug used in Ohio’s execution process is so painful not even a veterinarian would use it. The state says there’s little evidence Biros would experience pain while being put to death.

A trial began Monday before U.S. District Court Judge Gregory Frost as part of Biros’ challenge of the state’s lethal injection process.

Frost is taking testimony from members of Ohio’s execution team and the state prisons department to determine whether Biros can proceed with a full-blown constitutional challenge of Ohio’s execution procedures.

Frost is allowing team members to testify behind a drawing board that shields their identities.

Frost must determine whether Biros can prove he has a chance of making a successful argument against injection in a longer and more detailed trial.

Biros, 50, was sentenced to die in 1991 for murdering and dismembering 22-year-old Tami Engstrom in Brookfield Township in Trumbull County. He later spread parts of her body in Pennsylvania. Not all of her body has been found.

On Monday, an execution team member identified only as “Team Member 19” described his involvement in 10 executions over the years. He testified that he worked as an execution narrator, and his job was to describe the minute-by-minute execution process by phone to corrections officials gathered at a command post.

Biros argues that evidence from executions around the country indicate he could suffer a painful death from the effect of the lethal chemicals.

Prison officials “intend to violate plaintiff’s constitutional rights by executing him with drugs that include a paralyzing agent veterinarians will not use for the euthanasia of cats and dogs,” Biros wrote in a 2006 court filing.

The state says there is little evidence of the sort of pain Biros alleges.

“We remain unaware of a single court in this country to find the lethal injection process in any state — much less Ohio — unconstitutional on the grounds asserted by Biros,” the state argued, also in 2006.

In granting Biros’ delay in 2006, Frost said Biros did show some signs that he could succeed in his case.

“The limited record before this court now includes a growing body of evidence calling Ohio’s lethal injection protocol increasingly into question,” Frost wrote.

The U.S. Supreme Court last year ruled lethal injection constitutional in a challenge to the procedures used by Kentucky. The decision left open the possibility of individual challenges to state’s specific procedures, some of which could differ from those in Kentucky.

Biros came within hours of execution in March 2007 before the U.S. Supreme Court allowed him to continue his lawsuit against Ohio’s execution process.

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