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Expert testifies that McGuire execution was not humane


Dennis McGuire likely consciously suffered as he gasped for air and strained against his restraints before dying by lethal injection in January, according to an expert who signed a court affidavit on behalf of McGuire’s family.

“To a degree of medical certainty this was not a humane execution,” wrote Kent Diveley, a California anesthesiologist, in testimony released Tuesday by Dayton attorney Jon Paul Rion.

McGuire was executed in January for the 1989 rape and murder of Joy Stewart, a pregnant newlywed from Preble County. His will be the only execution in Ohio this year after a federal judge extended a moratorium on executions until January 2015.

Rion represents McGuire’s family in a federal lawsuit seeking an injunction against the death penalty on the grounds his death constituted unconstitutional “cruel and unusual punishment.”

Diveley’s statement runs directly contrary to a review released in April by the Ohio Department of Rehabilitation and Corrections that concluded the execution was “humane,” McGuire was unconscious and “did not experience any pain or distress.”

Diveley wrote that he reviewed available records from McGuire’s execution and determined the drugs and dosages used could take several minutes to knock out a patient preceding death.

“Mr. McGuire was noted to be straining against his restraints, struggling to breathe, and making hand gestures,” Diveley wrote. “More likely than not these represent conscious voluntary actions by Mr. McGuire. They exemplify true pain and suffering in the several minutes before he lost consciousness.”

McGuire closed his eyes about a minute after the drugs were administered and lay motionless for more than five minutes before he began convulsing and snorting. McGuire’s execution lasted 26 minutes, including 10 minutes of intermittently gasping for air. It was the longest execution since Ohio resumed the death penalty in 1999.

McGuire was injected with the sedative midazolam and the narcotic hydromorphone. Ohio had to switch to these drugs because it could not get supplies of pentobarbital, which protocol still says should be used if the state can get it.

Robert Weber, director of the pharmacy department at the Ohio State University Wexner Medical Center, said in an interview Tuesday that the hydromorphone dose was plenty to render McGuire quickly unconscious, but the drugs were possibly wearing off before he died from suppressed breathing.

“I wouldn’t think he would be conscious of it,” he said.

State prison officials would not comment on Diveley’s testimony. The state has filed a motion to dismiss the federal lawsuit and is in discussion with attorneys representing McGuire’s family.

The state did increase its planned dosages for the drugs used going forward. McGuire was killed with 10 mg of midazolam and 40 mg of hydromorphone. Future executions will use 50 mg of each.

This is the same cocktail used by Arizona in July to execute murderer Joseph Wood. But prison officials there had to give him 15 doses — a total of 750 mg of each drug — over the course of his two-hour execution.

“These two drugs were not designed for this purpose and there is no information available to indicate how these drugs will work across the board,” said Rion.

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