Judge clears Ohio killer who raped and murdered woman to face possible 'agonizing' death at experimental execution today

• In wake of an apparently botched execution that left condemned man in agony, Ohio to try untested lethal injection procedures
• Ohio's proposed combination of drugs has never been used in a U.S. execution
• Inmate's lawyer says the combo will cause an agonizing death
• Dennis McGuire, 53, scheduled to die Thursday for 1989 rape & murder of Joy Stewart in Ohio in 1989
• Anesthesiologist testifies that Ohio's execution drugs could cause Stewart to experience terror as he strains to catch his breath

By Daily Mail Reporter

Published: 23:20 EST, 14 January 2014 | Updated: 07:12 EST, 16 January 2014

Condemned: A federal judge has refused to stop the upcoming execution of Ohio killer Dennis McGuire, who raped and murdered a pregnant woman in 1989. He faces a never-tried lethal injection process that lawyers say could cause him agony and terror

A condemned Ohio killer who is due to be executed tomorrow, could face an agonizing death where he struggles to breathe in the last few minutes of his life.

Inmate Dennis McGuire's lawyers had argued that the combination of the sedative midozolam and painkiller hydropmorphone could lead to a painful and terrifying phenomenon called 'air hunger' before he actually dies.

It's the first time such a cocktail of drugs have been used in the state in this way, and the effects are unknown so much so that some have described the method as akin to an 'experiment'.

Lawyers for McGuire have attempted to stop his execution on the grounds he could experience a terrifying sensation of suffocation and that his sentencing him to death is unconstitutionally cruel.

U.S. District Judge Gregory Frost said the condemned man did not present enough evidence that there is 'a substantial risk' he will experience the "severe pain" that would constitute a violation of the ban on cruel and unusual punishment.

Last year, 450-pound inmate Ronald Post argued he was so overweight he could not be put to death humanely. Double-killer Richard Cooey made a similar argument in 2008.

In 2010, serial rapist Darryl Durr argued he might be violently allergic to Ohio's execution drug.

Each time, U.S. District Court Judge Gregory Frost, a veteran of the state's capital punishment legal challenges, ultimately allowed the execution to proceed. In his latest ruling, he said Monday that McGuire had failed to present evidence he would suffer breathing problems alleged by his attorneys - a phenomenon known as 'air hunger' - and said the risk to McGuire is within constitutional limits..

Also, because McGuire has several characteristics of sleep apnea, or the struggle to breathe while asleep, the chances are even greater he will be subjected to feelings of suffocation, an expert has warned.

'Mr. McGuire is at a substantial risk of experiencing the terror of air hunger during the first five minutes of the execution,' Professor David Waisel, of Harvard Medical School, said.

'Air hunger is a horrible feeling,' Waisel added. 'It's the inability to get your breath.'

Experimental: Some were concerned McGuire would experience terror as he strained to catch his breath due to Ohio's untested execution method

Punishment: The death chamber at the Southern Ohio Correctional Facility in Lucasville. Ohio used intravenous doses of two drugs, midazolam, a sedative, and hydromorphone, a painkiller, to put McGuire to death

Ohio plans to use intravenous doses of two drugs, midazolam, a sedative, and hydromorphone, a painkiller, to put McGuire to death.

The method has been part of Ohio's execution process since 2009, though never used. It was chosen because of a shortage of other lethal injection drugs.

That said, Frost acknowledged the novelty of Ohio's never tried two-drug combination, calling it 'an experiment in lethal injection processes.'

Victim: McGuire, 53, was sentenced to die for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. The 22-year-old Stewart was newly married and pregnant

But until a method violates the Constitution, 'The law teaches that Ohio is free to innovate and to evolve its procedures for administering capital punishment,' Frost said.

The state opposed any delay, presenting evidence that disputed the air hunger scenario.

McGuire, 53, is scheduled to die Thursday for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio. Attorneys say they're disappointed by the decision but pleased Frost recognized the untried nature of the process. They haven't decided whether to appeal.

McGuire has a separate request before the U.S. Supreme Court to delay his execution on the grounds that a jury never heard the full extent of his chaotic and abusive childhood. The state asked the court Monday to reject that appeal, saying McGuire's "challenges to his sentence have spanned decades and failed."

Post, the overweight inmate, was spared by Gov. John Kasich because of poor legal representation at trial, not his weight. He died of natural causes in prison last year. Cooey was executed in 2008 for the rape and murder of two female University of Akron students.

Durr was executed in 2010 with no apparent complications as he died.

As long ago as the 1990s, prisoners in California argued that the state's gas chamber could also produce "air hunger" in death row inmates. In 1994, a judge found that prisoners in the gas chamber were likely to suffer excruciating pain for between 15 seconds and several minutes. The state has since adopted lethal injection but lawsuits have kept it from being used.

Frost's ruling moved McGuire one step closer to execution by the two-drug method developed after supplies of Ohio's former execution drug dried up. Kasich has rejected McGuire's plea for clemency.

Last year, Frost rejected a challenge to the two-drug method by death row inmate Ronald Phillips, who was set to become the first to die by the new method until Kasich delayed his execution to study the feasibility of Phillips' donating organs to family members.

Supplies of Ohio's former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions.

Ohio's Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.

The combination of drugs Ohio intends to use has never been used in a U.S. execution. They are included in Kentucky's backup execution method, and Florida uses midazolam as part of its three-drug injection process.