A federal appeals court has ruled that an execution set for Dec. 8 can go forward due to a change in Ohio's execution policies.
The 6th U.S. Circuit Court of Appeals in Cincinnati said Wednesday that the change renders moot Kenneth Biros' argument that the state's former policy using a three-drug vein injection is unconstitutional.
A U.S. District Court judge had temporarily delayed Biros' execution after the governor halted the lethal injection of another inmate, Romell Broom, in September because prison staff could not find suitable veins.
The state last week announced that it was changing its protocol, effective Nov. 30, to use a one-drug vein injection with a backup two-drug muscle injection.
A message seeking comment was left for Biros' attorney Wednesday morning.
Doctor's help sought
Federal court papers show that as an execution team tried to find a vein during an unsuccessful lethal injection attempt on Broom, prison staff sought help from a doctor — a move generally discouraged by ethical and professional medical rules.
Dr. Carmelita Bautista said in a deposition filed in U.S. District Court that she had never before been involved in an execution.
"No, because I am a doctor," she tells a lawyer questioning her. "We are supposed to help people who are sick. We're supposed to heal people as such as we can."
Bautista said she tried to insert an IV catheter into Broom's foot during the execution attempt on Sept. 15 at the Southern Ohio Correctional Facility in Lucasville. Gov. Ted Strickland postponed it after several hours because a useable vein could not be found.
The American Medical Association prohibits its members from participating in executions, including anything that would "contribute to the ability of another individual to directly cause the death of the condemned."
But some doctors feel it's ethically permissible to participate in executions because they are helping inmates avoid pain and ensuring a peaceful death, said Richard Dieter, executive director of the Washington-based Death Penalty Information Center.
Bautista, who is on staff at Thomas Memorial Hospital in South Charleston, W.Va., was deposed in October in a long-standing lawsuit in which several inmates challenge Ohio's three-drug death penalty protocol as unconstitutional.
In a separate U.S. District Court case, Broom's lawyers have argued that the state should not be permitted to try to execute him a second time. A federal judge is to hear arguments in the case on Monday.