CINCINNATI — A federal appeals court Wednesday debated whether to lift an injunction that prevents Ohio from resuming executions after more than three years of delays.

Executions have been on hold since the problematic execution of Dennis McGuire, of Montgomery County, in early 2014. Witnesses described McGuire as making choking noises and struggling against his restraints before he died during an unusually long 26-minute process.

The first drug used in that two-drug process, since abandoned by Ohio, and in problematic executions in several other states was the sedative midazolam. A series of delays tied to court decisions and orders by Gov. John Kasich prevented any more executions over the next three years, but the state says it is now ready to resume executions using a new three-drug process.

Midazolam would again be the first drug in the new process, used for the first time in a massive 500-milligram dose.

At issue Wednesday for judges on the full bench of the Cincinnati-based U.S. 6th Circuit Court of Appeals was a January injunction ruling from U.S. District Magistrate Judge Michael Merz, of Dayton. Judge Merz found there were sufficient questions as to whether midazolam would sufficiently render a condemned inmate unconscious and incapable of experiencing severe pain from the second and third drugs designed to stop his breathing and then his heart.

On appeal, a three-judge panel of the 6th Circuit in April voted 2-1 to keep Judge Merz’s injunction in place. At the urging of Ohio Attorney General Mike DeWine’s office, the full bench agreed to void that decision and rehear arguments. Wednesday’s hearing was essentially a redo of the past arguments, but in front of 14 judges instead of three.

Appeals court judges on Wednesday went back and forth as to whether the use of midazolam would place the condemned at risk of unconstitutionally cruel and unusual punishment. They also considered whether the state has any real alternatives.

Some judges on the bench went after arguments voiced by Mark Haddad, an attorney for three death row inmates. Mr. Haddad argued the state could return to using a single overdose of the powerful barbiturate pentobarbital. The state maintains it cannot obtain the drug.

Ohio Department of Rehabilitation and Correction Director Gary Mohr “testified unequivocably if we had pentobarbital or sodium thiopental we would switch back to it,” State Solicitor Eric Murphy told the court.

Mr. Haddad argued that some states have been able to obtain pentobarbital, despite the refusal of their domestic and European manufacturers to make the drug available for use in executions.

“If midazolam worked the way sodium thiopental worked and pentobarbital worked, we wouldn’t be here,” he said. “They would just use midazolam [by itself].”

He made the argument in an attempt to show that the state knows midazolam isn’t as effective as the other drugs.

Judge Raymond Kethledge, a 2008 appointee of Republican President George W. Bush and the sole dissenter in the prior 2-1 decision, challenged another alternative presented by the inmates’ attorney — elimination of the second drug, the one designed to stop breathing, from the state’s protocol.

“There is considerable irony in some respects with this alternative,” he said. “Testimony is pretty clear that midazolam is pretty good at driving down anxiety, and the pain for the second drug is not the same as the third ... Pain from the second drug is you can’t breathe.”

He suggested that if midazolam would be sufficient to mask the pain of the third drug, potassium chloride inducing cardiac arrest, it should be sufficient to mask pain from the second, the paralytic agent rocuronium bromide.

The court debated whether Judge Merz’s determination that using midazolam as the first drug would cause “substantial risk of serious pain” is the proper standard to apply. Mr. Murphy said the lower court needed to determine that such pain would be a “near certainty.”

“Like it or not, it’s a tough standard,” Judge Kethledge told Mr. Haddad.

Judge Jane Branstetter Stranch, a 2010 appointee of Democratic President Barack Obama, questioned how someone would know whether an executed inmate suffered pain.

“I just don’t see how we reach that kind of consensus on this very untestable situation...,” she said. “Anyone on whom the test would occur is dead.”

Ohio is set to resume executions on July 26, starting with the often-delayed lethal injection of Ronald R. Phillips, of Summit County. Phillips was convicted in the 1993 rape and murder of his Akron girlfriend’s 3-year-old daughter.

The schedule then calls for an execution roughly once a month, with the line of scheduled lethal injections extending into 2021.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.

First Published June 14, 2017, 9:42 p.m.