CINCINNATI – A previously blocked execution set for Dec. 8 can now go forward due to a change in Ohio's lethal injection policies, a federal appeals court ruled Wednesday.
The decision of the 6th U.S. Circuit Court of Appeals means that Kenneth Biros would be the first inmate executed under the state's change from a three-drug intravenous lethal injection to a one-drug IV injection, with a two-drug muscle injection serving as a backup.
The change renders moot Biros' argument that the state's former policy is unconstitutional, said a three-judge panel of the court.
"In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure. Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect," the court wrote.
The decision could be appealed to the full 6th Circuit or to the U.S. Supreme Court. A message seeking comment was left for Biros' attorney, Tim Sweeney, Wednesday morning.
A U.S. District Court judge had temporarily delayed Biros' execution after the governor halted the lethal injection of another inmate in September because prison staff could not find a suitable vein.
The state last week announced that it was changing its protocol, effective Nov. 30, in the wake of the Sept. 15 execution attempt of Romell Broom, who said in an affidavit that executioners painfully hit muscle and bone during as many as 18 attempts to reach a vein.
Once the state receives official paperwork on the decision, it will move forward with preparations for the execution, said prisons spokeswoman JoEllen Smith.
Sweeney had argued that conducting the execution under the new protocol would be "human experimentation, pure and simple."
Biros, now 51, stabbed and beat 22-year-old Tami Engstrom 91 times, then strangled her in 1991 after offering her a ride home from a bar in Warren in northeast Ohio. He dumped parts of her dismembered body in Ohio and Pennsylvania.
He acknowledged killing her, and said it was done during a drunken rage.
In a separate case Wedensday, the Kentucky Supreme Court ruled Wednesday that state improperly adopted its three-drug execution method.
The court said the state must go back and readopt the method because officials did not follow state administrative procedures, including holding public hearings.
The challenge was brought by three death row inmates.
Kentucky's lethal injection method was previously challenged by one of the inmates, Ralph Baze.
That case went to the U.S. Supreme Court and led all the states who use a similar method to Kentucky to halt lethal injections until it was upheld.
Wednesday's ruling does not affect the validity of the three-drug method.