Death row inmate loses lethal injection appeal

Columbus - The Ohio death row inmate whose name is attached to a closely watched lawsuit challenging the state's lethal injection execution procedure lost what may be his final appeal Monday.

The decision by the U.S. Su preme Court, which recently upheld the in jection method in bordering Kentucky, could send Richard Cooey to the death chamber even as other condemned prisoners continue to fight Ohio's method of execution under his name.

Two other death row inmates - Kenneth Biros and James Frazier - also lost appeals Monday.

Cooey filed the lethal injection lawsuit in 2004, arguing that the cocktail of three chemicals used to put criminals to death in Ohio causes so much pain that it violates the Constitution's ban on cruel and unusual punishment.

But his case got caught up on a technicality: An appeals court said last year that Cooey had missed a deadline to file the suit within two years of the date his state-level appeals were completed in 1995. The three-judge panel of the Sixth U.S. Circuit Court of Appeals in Cincinnati had ordered the case dismissed, saying U.S. District Judge Gregory Frost used the wrong test for establishing the two-year time limit.

When the U.S. Supreme Court agreed Monday, it left Cooey at a legal dead end.

"We're still trying to sort through what the options are," said Kelly Culshaw, an assistant state public defender.

Cooey was sentenced to die in 1986 for raping and murdering two University of Akron students. He came within 12 hours of being executed in July 2003 when a federal judge delayed his execution to give his new lawyer more time to study the case.

Even if his attorneys find no other legal option for Cooey, that doesn't mean that Biros, Frazier or one of 17 other inmates who have signed onto the Cooey case won't continue their quest against injection, Culshaw said.

The Supreme Court's decision last week upheld a similar execution method in Kentucky, but Ohio's prescription for injection is slightly different and has encountered its own unique problems, including an inmate who sat up on the gurney at the death house to say the chemicals weren't working and another whose body visibly convulsed and twitched.

The Cooey suit and others that are pending could continue to affect Ohio's execution schedule - creating an effective moratorium while arguments are aired in court, said Keith Dailey, a spokesman for Gov. Ted Strickland.

"Based on our initial understanding of the court's decision today, Mr. Cooey may no longer be able to proceed with this argument, because of the statute of limitations issue, but others named in the suit will likely continue to pursue the case," he said Monday.

Dailey said the governor, who supports the death penalty, will evaluate all cases that make it to his desk on their merits - including Cooey's.