Never-before-used lethal injection concoction on trial in federal court

This Nov. 30, 2009 photo shows the witness room facing the execution chamber of the "death house" at the Southern Ohio Correctional Facility in Lucasville, Ohio.
This Nov. 30, 2009 photo shows the witness room facing the execution chamber of the "death house" at the Southern Ohio Correctional Facility in Lucasville, Ohio.

A never-before-used combination of lethal injection drugs could cause a condemned Ohio man to experience “the terror of air hunger” for five minutes, an anesthesiologist argued in federal court Friday, one week before the scheduled execution of 53-year-old Dennis McGuire.

“Air hunger is a horrible feeling,” said David Waisel, a professor at Harvard Medical School, in his testimony as reported by the Associated Press. “It’s the inability to get your breath.”

The two-day hearing marks a last-ditch effort by defense attorneys to stay the execution of McGuire, sentenced to die on Jan. 16 for the 1989 rape and murder of a 22-year-old pregnant woman.

Due a shortage of the typically used lethal injection drug pentobarbital, Ohio’s department of rehabilitation and correction plans to use a dose of the sedative midazolam and the painkiller hydromorphone. Though it’s been a backup in Ohio’s execution process since 2009, that combination of drugs has never been used in the United States.

Florida is the only state that has used midazolam for lethal injections, according to the non-profit Death Penalty Information Center, but it was used as part of a three-drug protocol, not two. 

Waisel and defense attorneys argue that the two-drug combination won’t properly sedate McGuire, leaving him with the feelings of “agony and terror” that accompany suffocation, according to court filings. Because McGuire has sleep apnea, resulting in a difficulty to breathe while asleep, the chances of his suffering during execution will be even greater, said Waisel.

The state says its own anesthesiology expert will testify that no such suffering will take place, and points to two instances where higher courts rejected claims that the drugs could cause severe pain. That testimony will be heard on Sunday.

There is no excuse for not raising this claim years ago, "much less presenting it for the first time in an eleventh hour stay of execution," lawyers for the Ohio Attorney General's Office said in their filing, reports the Associated Press.

The decision to grant the stay or let the execution go forward lies with U.S. District Judge Gregory Frost, a George W. Bush appointee, who has heard several arguments on Ohio’s lethal injection process over the years. Though he has never declared the drugs unconstitutional, Frost has criticized the state for loosely following its own execution policies.

Defense attorneys have also filed a separate appeal with the U.S. Supreme Court on the grounds that details of McGuire’s troubled childhood were not presented at trial, and could have prevented him from being sentenced to death. McGuire suffers from impaired brain function due to years of mental, sexual, and physical abuse by at least four different parental figures, his lawyers argue. He was also dangerously malnourished as a child and frequently had to steal food for himself and his sister. The brain damage makes him prone to act impulsively, his lawyers say.

The state will respond to that claim on Monday, said the Ohio Attorney General’s office.