Man set to die for two Parma murders loses federal challenge to Ohio's execution method

CLEVELAND, Ohio -- A federal magistrate judge in Dayton cleared the way for the execution of a man convicted of killing two people in Parma in 1992 by rejecting the latest challenge the three-drug combination the state of Ohio uses in its executions.

Judge Michael Merz wrote Friday that Gary Otte, who is awaiting execution, did not show that the drugs are "sure or very likely to cause severe pain." Otte had argued that the state's use of 500 mg of midazolam would not render him sufficiently unconscious as to spare him from excruciating pain.

Otte, of Terre Haute, Indiana, shot Robert Wasikowski in the head after talking his way into the 61-year-old man's apartment on Feb. 12, 1992. Otte also killed Sharon Kostura, 45, the next day after he forced his way into her apartment at the same complex.

The 45-year-old was found guilty of two counts of aggravated murder and other crimes later that year. He received death sentences for both killings. He is expected to soon be moved to a prison in Lucasville, where the state carries out its executions.

His arguments this week went in front of the same judge who previously declared the state's latest method of executing death-row inmates unconstitutional. A federal appeals court later reversed his decision, and the U.S. Supreme Court declined to intervene before the state executed Akron child killer Ronald Phillips in July.

Phillips died with no complications.

Case law says that an inmate challenging an execution method must provide a feasible alternative method. Otte said the state should hook up electronic monitoring devices to his body to ensure he is unconscious before the last two drugs -- a paralytic agent and potassium chloride, which will stop his heart and ultimately kill him -- are administered.

Merz rejected this argument, writing that Otte did not show that the monitoring device's measurements would show a correlation to any pain Otte might suffer.

The state also showed that its so-called "consciousness checks," which it performs with methods such as touching the inmate's eyeball, are aggressive enough as to elicit a response from somebody who might be conscious, Merz wrote.

Friday's ruling is the latest setback for Otte. The Ohio Supreme Court on Thursday declined to stay his execution. Gov. John Kasich last week declined to grant Otte clemency.

Still, Otte is expected to file a number of challenges to his case between now and Wednesday in an attempt to delay his execution.

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