Appeals court weighs Ohio law shielding lethal drugs source

Posted at 1:00 PM, Dec 28, 2016
and last updated 2016-12-28 17:48:03-05

COLUMBUS, Ohio (AP) -- A federal appeals court is weighing a challenge by attorneys for death row inmates of a judge's order blocking them from information about Ohio's new lethal injection process.

The pending decision by the 6th Circuit Court of Appeals will help determine whether Ohio will proceed with its first executions in three years beginning in February.

Ohio plans to execute Ronald Phillips on Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another execution is scheduled for April.

At issue are new efforts the state is making to shield information about lethal injection in hopes of jumpstarting executions in Ohio, which have been on hold since January 2014. That's when it took condemned inmate Dennis McGuire 26 minutes to die from a never-before-used two-drug method while he repeatedly gasped and snorted.

For example, a 2015 law blocks anyone from getting information about individuals or entities participating in executions, including companies that make or mix drugs.

The 6th circuit last year upheld that law while rejecting free speech allegations raised by death row inmates.

What's before the appeals court now is a protective order issued by a federal judge last fall that bars the release of information about lethal injection requested by attorneys for Phillips and two other inmates scheduled for execution in 2017.

That order, by retired Judge Gregory Frost, held that the state's need to obtain the drugs outweighs concerns by death row inmates that the information is needed to meaningfully challenge the source of the drugs, such as names of the manufacturers.

Federal Magistrate Judge Michael Merz in Dayton cited the current 6th Circuit case earlier this month when he put executions on hold. He said the hold could be lifted after the court rules.

Attorneys for death row inmates argue they can't meaningfully challenge the use of the drugs without the information. They also said the secrecy protections are unnecessary given the history of lawsuits over lethal injection in Ohio.

"Ohio's own history of 53 lethal injection executions over a period of 16 years never required the adoption of a privilege to shield absolutely those who participate in its administration - not even for the executioner himself and the actual members of the execution team," Allen Bohnert, a federal public defender, said in a May court filing.

The attorneys also say federal rules for obtaining evidence should take precedence over a state law trying to shield that evidence.

The state cites defense attorneys' "wildly exaggerated and misplaced arguments" to say that the secrecy provisions should be upheld.

"In response to the increasing unavailability of execution drugs, due to the hesitation of potential suppliers to sell the drugs for fear of threats or harassment, the legislatures of Ohio and other states have enacted laws rendering 'drugs source' information confidential," Charles Wille, an assistant Ohio attorney general, said in a July court filing.

The state's interest in keeping that information confidential far outweighs death row inmates' right to the release of that information, Wille said.

Death penalty defense attorneys say there's no evidence that suppliers would be harassed.

The Department of Rehabilitation and Correction in October announced plans to use a new three-drug combination - midazolam, rocuronium bromide and potassium chloride - for at least three executions.

Phillips and other inmates want to block the new procedure, arguing that it will result in a painful and barbaric death.

Gov. John Kasich has rejected Phillips' request for clemency.