Ruling on death penalty due soon

ELYRIA — Attorneys challenging the state’s lethal injection process on behalf of two accused killers failed to prove that the way the state executes prisoners is unconstitutional or that it violates Ohio law, according to prosecutors defending the process.

The state’s protocols are not only constitutional, they meet the requirements of an Ohio law that requires executions to be quick and painless, Assistant Lorain County Prosecutor Tony Cillo wrote in his closing argument, filed Tuesday.

“Because the undisputed evidence establishes that the properly anesthetized inmate cannot feel pain, Ohio’s three-drug cocktail is, by definition, ‘painless,’ ” Cillo wrote.

Lorain County Common Pleas Judge James Burge said he will likely issue a ruling in the cases of Ruben Rivera and Ronald McCloud, who could face execution if convicted in separate killings in Lorain, within the next two weeks.

Jeff Gamso, one of the attorneys representing the pair, has conceded that the three-drug cocktail used by Ohio in executions offers a painless death if properly administered, but he argued that the state can’t guarantee that nothing will go wrong in the execution process

Cillo asked Burge to throw out the closing argument submitted by Gamso, who also serves as legal director for the American Civil Liberties Union’s Ohio chapter, saying that he didn’t follow the judge’s instructions on how he should present his argument.

Gamso also had asked Burge to reconsider allowing him to interview the three members of the execution team with medical training, something Burge had previously refused.

In his closing argument, Cillo also renewed his objections to Burge even holding hearings on the constitutionality of lethal injection, saying that the judge shouldn’t even consider the issue unless McCloud and Rivera are convicted and sentenced to death.

Burge and the Ohio Supreme Court both rejected that argument, and Burge held hearings earlier this year in which two anesthesiologists testified that the lethal injection protocols used in Ohio were sound, as long as they are done correctly.

But the defense expert, Mark Heath, argued that if the first drug in the process — a sedative — didn’t keep an inmate unconscious, the second and third drugs — which paralyze the condemned inmate and stop his heart — would cause excruciating pain.

Mark Dershwitz, who testified for prosecutors in the case, said the amount of the sedative used by the state is powerful enough to kill an inmate without the aid of the other two drugs.

That prompted Gamso to say that the state should switch to using only the sedative, although he remains opposed to the death penalty.

Cillo countered that a recent U.S. Supreme Court decision upheld lethal injection and Gamso had failed to prove that there was a significant chance of something going wrong.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.