Dennis McGuire (Photo: Ohio Department of Corrections)
COLUMBUS, Ohio (AP) - A federal judge on Monday refused to stop the
upcoming execution of a condemned Ohio killer facing a never-tried
lethal injection process that the inmate's attorneys say will cause him
agony and terror.
Judge Gregory Frost's ruling moved Dennis
McGuire one step closer to execution by the two-drug method developed
after supplies of Ohio's former execution drug dried up. Gov. John
Kasich and the Ohio Parole Board have both rejected McGuire's plea for
The judge said McGuire had failed to present evidence
that he would suffer breathing problems alleged by his attorneys - a
phenomenon known as "air hunger" - and said the risk to McGuire is
within Constitutional limits.
"The evidence before this court fails to present a substantial risk that McGuire will experience severe pain," Frost said.
judge rejected a similar request last year by death row inmate Ronald
Phillips, who was set to become the first to die by the new method until
Kasich delayed his execution to study the feasibility of Phillips'
donating organs to family members.
McGuire, 53, is scheduled to die Thursday for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio.
A message was left with his attorneys seeking comment.
also asked the U.S. Supreme Court to delay the execution on the grounds
that the jury that sentenced him to die never got to hear the full
extent of his chaotic and abusive childhood.
In the lethal
injection appeal, McGuire's lawyers had asked Frost to delay the
execution while they challenge the proposed two-drug system.
drug combination won't sedate death row inmate McGuire properly, and he
will experience the suffocation-like air hunger syndrome, McGuire's
attorneys said in filings earlier this month.
experience the agony and terror of air hunger as he struggles to breathe
for five minutes after defendants intravenously inject him with the
execution drugs," the inmate's attorneys said in a Jan. 6 court filing.
They also said McGuire exhibits several symptoms of sleep apnea, which could exacerbate the problem.
state opposed any delay, presenting evidence that disputed the air
hunger scenario. They called McGuire's appeal an eleventh-hour request
that was years too late.
The U.S. Constitution bars cruel and
unusual punishment. But that doesn't mean execution procedures must be
entirely comfortable, Thomas Madden, an assistant Ohio attorney general,
told Frost on Friday.
"You're not entitled to a pain-free execution," Madden said.
Supplies of Ohio's former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions.
Department of Rehabilitation and Correction plans to use a dose of
midazolam, a sedative, combined with hydromorphone, a painkiller, to put
McGuire to death.
Other death penalty states are being challenged by supply shortages.
gave up attempts to use propofol over concerns the move could create a
shortage of the popular anesthetic if the European Union, which opposes
the death penalty, restricted its export.
In Georgia, the state's attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.
combination of drugs Ohio intends to use has never been used in a U.S.
execution. They are included in Kentucky's backup execution method, and
Florida uses midazolam as part of its three-drug injection process.