Judge in Ohio rejects stay in 1st 1-drug execution

[December 07, 2009]  COLUMBUS, Ohio (AP) -- A federal judge on Monday denied an emergency delay in the execution of an Ohio inmate scheduled to become the first person in the U.S put to death with a single drug.

In the ruling, U.S. District Judge Gregory Frost in Columbus said Ohio's execution system still has flaws that "raise profound concerns and present unnecessary risks." But the judge also wrote, it appears unlikely that Kenneth Biros can "demonstrate that those risks rise to the level of violating the United States Constitution."

Biros, 51, is set to die Tuesday for killing and dismembering a woman he met in a bar in 1991. It would be the first lethal injection under Ohio's switch from using three drugs to a new one-drug execution method.

The next step would be an appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati. That court on Friday refused to delay the execution but indicated that it anticipated further appeals. Biros' attorney, Timothy Sweeney, did not immediately return calls Monday to ask how he planned to proceed.

Ohio overhauled its execution procedure following the botched execution of Romell Broom that was halted by Gov. Ted Strickland in September. Executioners tried unsuccessfully for two hours to find a usable vein for injection, painfully hitting bone and muscle in as many as 18 needle sticks. Broom, 53, has appealed the state's attempt to try again.

In asking Frost for a stay, Biros had argued that the new execution method still left vein access issues unresolved, subjecting him to the risk of severe pain, and had described the new one-drug approach as "impermissible human experimentation." The judge in his ruling called the arguments "unpersuasive."

Lethal injection experts and defense attorneys for death row inmates have said the one-drug method, a single dose of an anesthetic, would not cause pain.

All 36 death penalty states use lethal injection, and 35 rely on the three-drug method. Nebraska, which recently adopted injection over electrocution, has proposed the three-drug method but hasn't finalized the process.

Biros killed 22-year-old Tami Engstrom near Warren in 1991 after offering to drive her home from a bar, then scattered her body parts in Ohio and Pennsylvania.

[Associated Press; By ANDREW WELSH-HUGGINS]

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