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November 26, 2009

Biros’ death date still Dec. 8

Court OKs Ohio execution method

CINCINNATI (AP) — An inmate whose execution was put on hold as he argued that Ohio’s method of lethal injection was unconstitutional can die as scheduled next month, now that the state has instituted a different method, a federal appeals court ruled Wednesday.

Kenneth Biros would be the first inmate executed under the state’s change from a three-drug intravenous lethal injection to a one-drug IV injection, with a two-drug muscle injection serving as a backup. A federal district judge had temporarily delayed his execution after an unsuccessful attempt to execute another inmate.

“In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure. Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect,” the appeals court wrote.

Biros could still bring a new challenge requesting a stay of execution under the new protocol, the court noted. Or he could appeal to the full 6th Circuit or to the U.S. Supreme Court.

Biros’ attorney, Tim Sweeney, said all three options will be considered over the next few days.

“We appreciate the court ruling as quickly as it did, because it gives us some time to step back and decide what options are available,” Sweeney said.

Sweeney had argued that conducting the execution under the new protocol would be “human experimentation, pure and simple.”

The state announced Nov. 13 that it was changing its protocol, effective Nov. 30, after the Sept. 15 attempt to execute Romell Broom, who said in an affidavit that executioners painfully hit muscle and bone during as many as 18 attempts to reach a vein.

The governor ended up delaying Broom’s execution.

Once the state receives official paperwork on the appeals decision, it will move forward with preparations for Biros’ execution, planned for Dec. 8, said prisons spokeswoman JoEllen Smith.

Biros, now 51, stabbed and beat 22-year-old Tami Engstrom of Hubbard 91 times, then strangled her in 1991 after offering her a ride home from a bar in Brookfield. An autopsy found several beating and stab wounds before her death, and the coroner said she was stabbed several times afterward and dismembered within minutes.

A search based on Biros’ information led to body parts that had been buried, and some dug up and reburied, in Trumbull and Mercer counties.

Biros acknowledged killing her, saying he did so in a drunken rage.

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