Full appeals court won't stop one-drug execution

A federal appeals court refused yesterday to delay the execution of an Ohio inmate who could become the first person in the country put to death with a single drug.

The full 6th U.S. Circuit Court of Appeals declined to hear the challenge of Kenneth Biros, who is scheduled to die Tuesday for killing and dismembering a woman he met in a bar in 1991.

A 3-judge panel of the court had ruled last week that the execution could proceed because the state adopted a method that Biros had not previously challenged. The full court upheld that decision yesterday.

Biros, however, already has filed a different challenge to the new 1-drug method.

One of the 6th Circuit judges said yesterday that it is unlikely that Biros will be successful in that new challenge. Judge Jeff Sutton said the state's decision to move to the 1-drug system addresses two of Biros' primary complaints about the old method, which involved 3 drugs.

Biros had argued that the 3-drug method could cause severe pain and could lead to problems if a usable vein can't be found.

Biros' attorneys have argued in the past that the one-drug method would be painless. And the state's new system allows executioners to inject drugs into a muscle if a usable vein can't be located.

"That development leaves Biros with serious likelihood-of-success problems," Sutton said.

Judge Boyce Martin, an appeals court judge who would have stopped Biros'execution, criticized Sutton for commenting on an issue not yet before the court.

Biros' attorneys asked U.S. District Judge Gregory L. Frost in a hearing yesterday for an emergency order delaying the execution. Attorney Tim Sweeney said the state is rushing unnecessarily to put Biros to death with a new method, and implementing a new procedure should be done in a reasonable, deliberate way. "That doesn't mean months or years, but more than just a few days," he told Frost.

Source: Associated Press, December 5, 2009

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