Prosecutor questions judge over arguments about Ohio executions

A hearing is being conducted in Lorain County.

ELYRIA, Ohio (AP) — A prosecutor accused a judge Tuesday of making arguments on behalf of two men challenging the state’s method of executing prisoners.

Ruben Rivera and Ronald McCloud, who are accused of separate murders and could receive death sentences if convicted, are disputing the state’s lethal injection process, saying it doesn’t provide the quick and painless death required by Ohio law. Lorain County Common Pleas Judge James Burge conducted a hearing Tuesday to discuss testimony from two anesthesiologists who took the stand last month.

When Burge began questioning language in Ohio’s lethal injection statute, assistant county prosecutor Tony Cillo bristled, saying the judge was helping the American Civil Liberties Union make its case.

“The court is now making arguments for the plaintiff and that is not the court’s role,” said Cillo, complaining that he could not prepare for arguments that the ACLU had not raised.

“You’re supposed to know all of them,” Burge said.

The disagreement started over a highly technical question. Burge raised the issue of whether the words “quickly and painlessly cause death” in the statute should be applied not only to the dosage of the lethal injection drugs, but to how they are administered.

In an earlier hearing, Cillo questioned whether Burge already had formed an opinion on the death penalty, noting that the former defense attorney has a photo of former client James Filiaggi in his office. Filiaggi was executed last year.

“The court’s role is to presume it’s constitutional,” Cillo said Tuesday.

“I do,” Burge said.

Burge then held a long recess.

Earlier in the hearing, ACLU attorney Jeff Gamso acknowledged that Ohio’s lethal injection method provides a quick and painless death if the procedure goes as intended.

“Things can go wrong, and when things go wrong there is at least the possibility that lethal injection will not be free of extraordinary pain,” Gamso said.

Last month, one anesthesiologist testified that Ohio’s execution procedure is humane and includes enough anesthetic to knock out an average inmate for two hours. The other said the procedure was unfit for even dogs and cats.

Burge’s decision could determine the fate of the state’s process for executing condemned inmates, although his ruling will likely be appealed to the state Supreme Court.