A federal appeals court has refused to stop Tuesday's execution of an Ohio inmate who could be the first in the nation put to death with a single lethal injection drug.
The 6th U.S. Court of Appeals in Cincinnati on Friday turned down Kenneth Biros' request to have the full court hear his challenge of Ohio's injection system.
A three-judge panel of the court ruled last week that the execution could proceed because the state adopted a new method that Biros had not previously challenged. The full court upheld that decision Friday, but Biros has already filed a formal challenge of the new process and asked for an emergency delay.
A federal judge in Columbus planned a hearing on Biros' latest challenge Friday and it's possible, depending on his decision, the issue could return to the appeals court.
Ohio Gov. Ted Strickland also denied clemency to Biros just Thursday after he reviewed Biros' full case and last month's parole board recommendation against clemency.
In a statement he released on the clemency, Strickland said:
"Pursuant to his conviction for Aggravated Murder, the Ohio Supreme Court has scheduled the execution of Mr. Kenneth Biros for December 8, 2009. His execution was previously scheduled on March 20, 2007 but due to a federal court stay stemming from his challenge to Ohio's lethal injection process, the execution did not proceed at that time. Because there was a possibility that the stay might have been lifted, on March 16, 2007, after a thorough review of materials associated with Mr. Biros' conviction, I denied Mr. Biros' then pending request for Executive Clemency.
After the U.S. Supreme Court's decision in May 2008 affirming the constitutionality of lethal injection, the District Court's stay was lifted and the new, December 8, 2009 execution date was set by the Ohio Supreme Court. Given the passage of more than two years since its original review of Mr. Biros' clemency application, the Parole Board initiated an additional hearing regarding Mr. Biros' clemency application.
On November 17, 2009, the Board again unanimously recommended the Mr. Biros' application be denied. My staff and I have again reviewed the record of the proceedings and the evidence presented in Mr. Biros' case, the judicial decisions regarding Mr. Biros' conviction, the Application for Executive Clemency filed by Mr. Biros' attorneys and arguments presented for and against the clemency request, and Mr. Biros' institutional mental health record. We have also reviewed letters received in the Governor's office regarding this matter and the unanimous recommendation against clemency forwarded to me by the Ohio Parole Board on January 10, 2007 and November 17, 2009.
Based on this further review, my original denial of Mr. Biros' Application for Executive Clemency stands."
Biros killed and dismembered 22-year-old Tami Engstrom near Warren in 1991 after he offered to drive her home from a bar.
