COLUMBUS — A condemned Ohio inmate who says he's allergic to anesthesia is undertaking what appears to be a unique legal maneuver, arguing that no one knows how his body will react if state officials are allowed next week to inject him with the one lethal drug they now use.
A doctor is studying what impact, if any, the allergy could have on the execution process after lawyers for Darryl Durr uncovered evidence of Durr's allergy in his 800-page prison medical record. Durr was sentenced to die for raping and strangling a 16-year-old Elyria girl in 1988.
"One of the things the Ohio Constitution guarantees is that he has a quick and painless execution," said defense attorney Kathleen McGarry.
"If he's going to react to the anesthetic drugs in such a manner that he's going to have a violent reaction, either vomiting or seizures or whatever the spectrum is that could happen, then obviously the execution has problems," she said.
McGarry said she doesn't know what drugs Durr is allergic to, or whether they include thiopental sodium, the anesthetic that Ohio uses to put inmates to death. The state last year became the first to switch to a single intravenous dose of anesthetic for executions instead of three drugs, a move followed by Washington state in March.
Ohio's untried backup method would inject a powerful sedative and painkiller into muscle, a combination that together is supposed to produce death.
The allergy could be an issue during the execution, according to lethal injection expert Mark Heath, who is reviewing Durr's records to determine whether there's a problem.
"An allergic or other adverse reaction to some component of a general anesthetic might present a serious problem for an execution by lethal injection," according to an e-mail from Heath, a Columbia University Medical Center anesthesiologist, that was filed in federal court as part of Durr's request.
However, "it would depend on the drug that precipitated the reaction and the nature of the reaction," Heath said.
McGarry would not allow Heath to be interviewed about his review.
U.S. District Court Judge Gregory Frost allowed Durr's medical records to be reviewed over the objection of the state. The Ohio attorney general's office argued the judge didn't have the authority to approve Durr's request for an expert of his choosing in a lawsuit against the state.
Heath's report is expected soon, given that Durr's execution is scheduled for Tuesday. Depending on the findings, Durr could use the results to try to stop or delay the execution, a request the state would likely oppose.
Death penalty experts say they're unaware of a similar issue being raised in the past, though strong reactions to lethal injection drugs have occurred. Most states generally begin the execution process with an anesthetic like the one Ohio uses alone.
In 1989, Texas death row inmate Stephen McCoy reacted violently to the chemicals and began choking and seizing, despite being restrained. A witness fainted, knocking over another witness. A state official later said a heavier dose might have been warranted.
In 1992 in Oklahoma, death row prisoner Robyn Lee Parks also had a violent reaction as the muscles in his jaw, neck, and abdomen began to spasm about two minutes after the drugs started to flow.
The exact reason for the reactions is unclear in both cases.
The secrecy that surrounds many states' injection procedures may explain why the issue appears never to have arisen before, said Deborah Denno, a Fordham University law professor and lethal injection expert.
The only similar filing in Ohio may have been Richard Cooey's unsuccessful argument in 2008 that he had poor vein access compounded by his obesity. Courts rejected Cooey's argument, and he was executed for the killing of two University of Akron students.
Durr received a death sentence for killing Angel Vincent of Elyria. The state had previously referred to her as Angel O'Nan, using her stepfather's surname.
Durr also has a lawsuit pending in federal court asking for further DNA testing and is awaiting Gov. Ted Strickland's decision on clemency.