Without explanation, the court rejected usually routine motions from Attorney General Jim Petro to schedule executions for Johnnie Baston, 32, convicted in the 1994 robbery slaying of a downtown Toledo merchant, and Arthur Tyler, 46, convicted in the 1983 robbery shooting of a Cleveland produce vendor.
The motions were triggered by the U.S. Supreme Court's refusal to hear their appeals.
"Typically, [the state justices] set the dates," Petro spokesman Kim Norris said. "They have not provided us with an explanation of why they were denied."
Both Baston and Tyler have joined a suit in U.S. District Court that argues Ohio's lethal-injection protocol constitutes cruel and unusual punishment, a claim further fueled by the problem-plagued execution of Toledo native Joseph Lewis Clark.
"The [U.S.] Constitution precludes cruel and unusual punishment, and until we know that they aren't being tortured to death, the executions shouldn't proceed," said Assistant Public Defender Kyle Timken, Baston's attorney.
U.S. District Judge Gregory Frost had previously halted the already-scheduled execution of Jeffrey Hill of Hamilton County, who had joined the suit. The stay was issued just days before the state executed Clark, who never sought to join the federal lawsuit.
"After the Joseph Clark execution, I tried to file a supplemental objection to the motion [to set a date] on the grounds it was cruel and unusual punishment, but they refused to even take it," said Tyler's attorney, Richard Kerger of Toledo. "But I'm fairly sure, based on the fact that Baston and Tyler both had their dates denied, that that was what was troubling them."
Speaking generally, Justice Paul Pfeifer said the court usually will not set a date if the justices believe it would simply prompt another court to step in and issue a stay.
"If that's a probability, we don't set a date," he said.
The attorney general's office essentially had taken the position that the court should set the date and leave it to Judge Frost to later stay the execution.
Four death-row inmates are plaintiffs in the federal case, which, in part, contends that the first drug used in Ohio's lethal injection process may not render the inmate unconscious but, rather, paralyze him to suffer as the next two drugs shut down his lungs and heart.
On May 2, the execution team struggled to find usable veins in both of Clark's arms, ultimately deciding to proceed with one intravenous line. That vein apparently collapsed as the execution got under way, prompting Clark to raise his head from the gurney and repeatedly say, "It don't work."
The execution team pulled the curtain closed, but witnesses still could hear Clark moaning and groaning for several minutes as the team worked to find another vein.
Ultimately, the execution took nearly 90 minutes. In previous executions, the process typically took about 10 minutes.
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