COLUMBUS, Ohio (AP) — The state’s execution policy leaves
open the chance an inmate could remain clinically alive even after
being pronounced dead, attorneys said Thursday as they tried to stop a
condemned killer from being put to death in March.
Inmates also
run the risk of experiencing unnecessary pain by suffocation under the
current execution policy, and Ohio is violating state and federal law by
using lethal drugs without prescriptions to carry out capital
punishment, the attorneys said in a federal court filing.
The
attorneys want a federal judge to stop the March 19 execution of Gregory
Lott and declare the state’s new execution policy unconstitutional.
There
is a substantial risk that Lott’s "electrical cardiac activity and
electrical brain activity will continue for as long as 45 minutes after
breathing and heart sounds are undetected," federal public defenders
Stephen Ferrell and Stephen Kissinger said in the filing.
The
lawsuit is the latest in a series of legal challenges to Ohio’s
injection policy dating back years. It appears to be the first time
attorneys have alleged inmates aren’t dead despite a warden’s
declaration.
The lawsuit follows last week’s execution of Dennis
McGuire by the new two-drug method combining the sedative midazolam with
the painkiller hydromorphone. Ohio adopted the system after supplies of
its previous execution drug dried up.
McGuire, 53, was sentenced
to death for raping and killing a pregnant newlywed in 1989. He
repeatedly snorted, gasped and opened and shut his mouth as if yawning
over several minutes, though he appeared unconscious the entire time.
His 26-minute execution was the longest since Ohio resumed putting
inmates to death in 1999.
The lawsuit alleges McGuire could have remained clinically alive 45 minutes after his official time of
death.
McGuire’s
last perceived movement was at 10:43 a.m., and he was then motionless
for 10 minutes before being declared dead at 10:53 a.m., according to
observations by The Associated Press at the execution.
Ohio Department of Rehabilitation and Correction spokeswoman JoEllen Smith said the agency doesn’t
comment on pending lawsuits.
Lott
was sentenced to die for killing 82-year-old John McGrath by setting
him on fire in his East Cleveland home in 1986. McGrath died in the
hospital 11 days after the fire.
Lott’s attorneys allege because
there is no prescription for any of the drugs called for by Ohio’s
policy, they can’t be legally imported, distributed or dispensed by any
pharmacist.
Lott, 51, was found guilty after a trial before a
three-judge panel. He came within a few days of execution 10 years ago
before the U.S. Supreme Court allowed him to pursue an innocence claim.
Courts later upheld his sentence and set an execution date.
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Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus
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