By Andrew Welsh-Huggins
COLUMBUS, Ohio — A federal judge on Thursday declined to stop the upcoming execution of a condemned child killer over concerns raised by defense attorneys over the state's new, never-tried lethal injection processes.
Ronald Phillips' lawyers sued Oct. 31 to stop his execution on the grounds that Ohio had delayed the announcement of its policy so long it didn't leave enough time to fully investigate the method. They also question the Department of Rehabilitation and Correction's decision to allow the prisons director to delegate execution responsibilities to other individuals.
Judge Gregory Frost said he understands why Phillips does not trust the state to follow its own execution policies based on problems in the past. But he said Phillips did not prove the state's new policy is unconstitutional.
"Some of the changes target the drug issue, while other changes tweak the protocol in various ways," Frost wrote. "The changes do not invariably result in the new protocol being unconstitutional."
Phillips, 40, is scheduled to die Nov. 14 for raping and killing Sheila Marie Evans, the 3-year-old daughter of his girlfriend, after a long period of abusing the girl.
Phillips' lawyers argue that allowing the director to delegate some execution-day duties broke a previous agreement with the judge that put all the decision-making in the hands of the director or the death row warden. Ohio has walked away from that promise with the new policies, Allen Bohnert, an attorney for Phillips, told Frost at a Nov. 1 hearing.
"Close enough for government work is not acceptable in applying this death penalty protocol," Bohnert said.
An attorney for Ohio said the state is committed to carrying out the execution in a humane, dignified and constitutional manner and understands that commitment.
"The state will do what the state says it will do," Christopher Conomy, an assistant Ohio attorney general, said at the hearing.
The agency switched to two new drugs because it couldn't obtain a supply of its former execution drug, pentobarbital, from a specialty pharmacy that mixes individual doses for patients. The agency had considered using a compounding pharmacy after its supply of federally regulated pentobarbital expired in September.
Instead, the state plans to use an intravenous combination of midazolam, a sedative, and hydromorphone, a painkiller, to put Phillips to death.
Those drugs already are included in Ohio's never-tried backup execution method, which requires them to be injected directly into an inmate's muscle. No state has put a prisoner to death with that combination of drugs.
Florida uses midazolam as the first of three drugs, while Kentucky includes the two in its untested backup method.
In video testimony from the prison housing death row at the Nov. 1 hearing, Phillips said a doctor could not find veins in his arms during a pre-execution check-up in October.
"I guess the Lord hid my veins from them," Phillips said.
Gov. John Kasich is weighing clemency for Phillips, though the state Parole Board's unanimously recommended against mercy Oct. 24.
Phillips' lawyers have pushed for mercy, arguing he was raped and beaten by his late father as a child and grew up in a chaotic, filthy environment.
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The state says Phillips long denied suffering such abuse and raised it only as his execution became imminent.