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Dec 11, 2014 11:13 AM

Prosecutor: Chances of February execution 'nil'

The Associated Press

COLUMBUS, Ohio (AP) Ohio is weighing changes to its lethal injection law that are meant to restart executions, but the updated law will undoubtedly lead to lawsuits that will make carrying out the next scheduled procedure on Feb. 11 impossible, a prosecutor said Thursday.

The Summit County prosecutor's office is not counting on Ronald Phillips' execution happening, said Brad Gessner, the office's chief counsel. He said the condemned child killer's death is overdue.

An earlier court filing by the office said the chances of Phillips' execution happening were "nil."

"February is not basically something that we're counting on," Gessner said. "We're at that point that regardless of what is done with the law, the opponents of this punishment will do whatever they feel they need to do to delay this."

A message was left with Phillips' public defender.

The legislation up for a final Senate vote Thursday would shield the names of companies that provide lethal injection drugs to Ohio, a provision that supporters say is necessary to obtain supplies of the drugs.

Lawmakers want the measure in place at least a month before the execution of Phillips, sentenced to die for raping and killing his girlfriend's 3-year-old daughter in Akron in 1993. Any changes to the state execution policies must be filed a month before executions.

The chance of "an execution going forward on February 11, 2015 is nil," Richard Kasay, assistant Summit County prosecutor, said in a Dec. 1 court filing.

Kasay wants more time to respond to arguments that lawyers filed last month to overturn Phillips' death sentence, a filing he called "voluminous."

Phillips' lawyers say the doctor who testified about Phillips' rape of the girl gave biased testimony because he was trying to open a private autopsy business he thought needed the county prosecutor's permission.

The doctor's testimony about the rape is key to Phillips' death sentence, since the rape was the factor that elevated the slaying to a capital punishment case.

The anonymity for companies was requested by lawmakers after prosecutors said executions wouldn't happen in Ohio without such protection. It's aimed at so-called compounding pharmacies that mix doses of specialty drugs.

The state hasn't been able to obtain its first choice for an execution drug, compounded pentobarbital, and problems with its two-drug backup method led to an unofficial moratorium on executions after an inmate gasped and snorted during his 26-minute procedure in January.

Further questions about those drugs, midazolam and hydromorphone, arose after Arizona used them during a nearly two-hour execution of an inmate in July.

On Wednesday, lawmakers removed a measure from the bill that doctors and drugmakers warned could have led to shortages of a key drug and set anesthesiology back 20 years.

At issue was a requirement that would have prevented drugmakers from restricting the distribution of drugs that could be used in executions. Opponents warned that the European Union would quickly ban the export of the anesthetic propofol to the U.S. if Ohio's bill became law.

Europe supplies almost 90 percent of propofol used in the United states and no similar drug shares its safety and effectiveness, Dr. Robert Small, an anesthesiologist representing the Ohio Society of Anesthesiologists, told the Senate Civil Justice Committee.

The restriction would have a "cascading effect" that would harm patients and their families in Ohio, added John Ducker, president and CEO of Lake Zurich, Illinois-based drugmaker Fresenius Kabi.

Last year, Missouri dropped plans to use propofol as an execution drug because of concerns the move could create a shortage of the popular anesthetic if the EU restricted its export.


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