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The Ohio Court of Appeals for the Sixth Circuit voted on April 25 for a rehearing on a previous ruling regarding the state's lethal injection protocol.
Earlier this month, a three-judge panel from the same court voted April 6 to uphold an order barring the use of midazolam in Ohio's lethal injection protocol. The April 25 ruling vacates the panel's decision until a hearing can be held with the full court on June 14.
This ruling is the latest in a series of judgments on the controversial drug in Ohio.
In January, Magistrate Judge Michael Merz of the U.S. District Court for the Southern District of Ohio ruled in favor of three death row inmates and their claims against the state.
The ruling followed a five-day evidentiary hearing in which experts spoke on the constitutionality of midazolam — a drug most frequently used for sedation. The inmates argued that the drug violated their Eighth Amendment right against cruel and unusual punishment.
In the Sixth Circuit's 2-1 ruling on April 6, Circuit Judge Karen Nelson Moore, joined by Circuit Judge Jane Branstetter Stranch, wrote an opinion that looked at the conclusions drawn during the evidentiary hearing in January.
Related: Appeals court upholds ruling against use of midazolam in Ohio executions (April 18, 2017)
One expert witness for the plaintiffs, Craig Stevens, a professor of pharmacology at Oklahoma State University, concluded that the use of a midazolam as the first drug in a three-drug protocol "is highly likely to cause intolerable pain and suffering," as it would not mask the effects from the second and third drugs.
The drug has been implicated in several problematic executions, including the 2014 Ohio execution of Dennis McGuire. McGuire was the first inmate in the state to be executed with the state's then-new drug protocol of midazolam and hydromorphone.
Allen Bohnert, who represents some of the death row prisoners in the lawsuit, believes that the evidence will convince the full Court of Appeals that "Ohio's current lethal injection protocol will not meet the constitutional requirements."
"The federal district court and the Sixth Circuit panel agreed that because the risks are too great, Ohio's lethal injection protocol using the controversial drug midazolam should be stayed at least until a trial on the merits can be held," Bohnert said in a statement. "We look forward to presenting compelling evidence to the full Court regarding midazolam's unsuitability as an execution drug."
Two out of the three plaintiffs in the case are scheduled for execution prior to the new hearing: Ronald Phillips on May 10 and Gary Otte on June 14. Bohnert told NCR that "it's not clear what the state will do at this time." He said that the April 25 court order does not vacate the injunction Merz put in place in January.
[Kristen Whitney Daniels is an NCR Bertelsen intern. Her email address is kdaniels@ncronline.org. Follow her on Twitter: @KWhitneyDaniels.]
