[JURIST] The US Court of Appeals for the Sixth Circuit [official website] has ruled [opinion, PDF] that the execution of Kenneth Biros could proceed as scheduled, overturning a stay of execution issued by the district court [JURIST report] last month. The appeals court held Wednesday that the change to the execution procedure in Ohio removed the legal question from the case:
[T]he district courts stay order must be vacated because any challenge to Ohios three drug execution protocol is now moot. Since Biros filed his lawsuit, the State has amended its lethal injection protocol. ... Ohio no longer follows the principal procedures that Biros challenges, the motion no longer presents a live dispute.The challenged execution method, the so-called "set-to-die" procedure, was introduced [JURIST report] earlier this year, replacing the three-drug method used in most states. Executions in Ohio will be conducted with a single intravenous injection starting November 30, with two intramuscular injections serving as a backup in case a suitable vein cannot be found. Biros will be the first death row inmate to be executed using this procedure. Biros's attorney has promised to appeal the decision to the full Sixth Circuit or the US Supreme Court [official website], claiming [NYT report] that the execution order amounts to human experimentation.
The US District Court for the Southern District of Ohio [official website] issued a stay of execution for Biros last month, as the review of the lethal injection procedures in Ohio continued. Biros was the fourth Ohio death row inmate to be granted a stay of execution since the failed attempt to execute Romell Broom [JURIST report] in September. Along with Broom, the executions Darryl Durr and Lawrence Reynolds were also postponed until spring [JURIST report]. Biros was convicted of a 1991 murder and attempted rape and is scheduled to be executed on December 8.