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Ohio inmate raises suffocation, legal aid appeals

  • Article by: ANDREW WELSH-HUGGINS
  • Associated Press
  • January 10, 2014 - 4:35 PM

COLUMBUS, Ohio — With time running out, the condemned killer of a pregnant woman has launched two federal appeals, arguing both that his original attorneys never got the chance to lay out the extent of his chaotic and abusive childhood, and that if executed, he would experience "agony and terror" from the state's untried execution process.

The state calls death row inmate Dennis McGuire's argument over the execution process an "eleventh hour" appeal based on claims that should have been raised years ago. Ohio is also expected to oppose arguments about the impact of McGuire's childhood.

On Friday, defense attorneys put an anesthesiologist on the stand in federal court to bolster their arguments about the effect of the drugs. The state plans to counter with its own medical expert at a hearing Sunday.

McGuire, 53, was sentenced to die for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. The 22-year-old Stewart was newly married and pregnant.

McGuire is at substantial risk of a medical phenomenon known as air hunger, which will cause him to experience terror as he strains to catch his breath, anesthesiologist David Waisel testified Friday.

Because McGuire has several characteristics of someone with sleep apnea, or the struggle to breathe while asleep, the chances are even greater he will be subjected to feelings of suffocation, said Waisel, a professor at Harvard Medical School.

"Mr. McGuire is at a substantial risk of experiencing the terror of air hunger during the first five minutes of the execution," Waisel said.

"Air hunger is a horrible feeling," Waisel added. "It's the inability to get your breath."

Ohio plans to use intravenous doses of two drugs, midazolam, a sedative, and hydromorphone, a painkiller, to put McGuire to death. The method has been part of Ohio's execution process since 2009, though never used. It was chosen because of a shortage of other lethal injection drugs.

The U.S. Constitution bans executions that constitute cruel and unusual punishment. But that doesn't mean procedures are entirely comfortable, an assistant Ohio attorney general told federal Judge Gregory Frost.

"You're not entitled to a pain-free execution," attorney Thomas Madden said Friday.

The state says its own anesthesiology expert is ready to argue that experiments disprove the air hunger experience alleged by McGuire's attorneys.

The state also says that because courts have upheld the use of the two drugs in Ohio's backup method — injection into muscle if the primary method was not effective — McGuire can't challenge them just because they are to be given intravenously.

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 a Thursday filing.

Late Wednesday, McGuire's attorneys filed a separate appeal with the U.S. Supreme Court, saying information about his chaotic childhood of abuse and neglect could have prevented him from being sentenced to death if it was presented at trial.

The filings argue McGuire was so malnourished as a child that his stomach was swollen and distended. He also had to frequently steal food for himself and his younger sister, the appeal said.

The state's response to that claim is expected Monday.

© 2014 Star Tribune