CINCINNATI — A federal appeals court was asked Tuesday to make it possible for the state of Ohio to resume executions using a revised three-drug process.

At issue is whether the first drug in the state’s latest protocol, the anti-anxiety medication midazolam, renders the condemned inmate deeply unconscious and incapable of experiencing pain as the followup drugs shut down breathing and stop the heart.

U.S. Magistrate Judge Michael R. Merz issued a preliminary injunction in January prohibiting the state from proceeding with its first three scheduled executions because of a “consensus” among experts that use of midazolam might result in unconstitutionally cruel and unusual punishment.

State Solicitor Eric Murphy urged the U.S. 6th Circuit Court of Appeals to overturn that ruling, arguing that inmates must offer an alternative that is lawful and feasible.

The fact that witnesses described movement in past executions after the injection of midazolam does not necessarily mean that the person being executed was experiencing pain, Mr. Murphy said.

“I don’t think movements are dispositive here ...,” he said. “Even with respect to barbiturates, we would anticipate movement with the use of the third drug.”

Erin Gallagher Barnhart of the U.S. Public Defenders’ office has offered two alternatives.

The first would be the use of pentobarbital, a barbiturate that the state would also prefer to use but hasn’t been able to obtain because its manufacturers object to its use in putting people to death.

The other would be to get rid of the second drug, the paralytic agent, instead using just midazolam, coupled with tight medical monitoring to ensure unconsciousness, followed by the drug inducing cardiac arrest.

“We don’t think midazolam can do what the state says it can do,” Ms. Barnhart told the court.

As one judge noted, removing the paralytic agent from the mix would presumably make it clearer whether the inmate was experiencing pain, something that might otherwise be shielded.

“I think it’s an untested method,” said Mr. Murphy.

Magistrate Judge Merz’s decision prompted Gov. John Kasich to reset the execution schedule, postponing eight executions as part of a backlog that now extends into March, 2021. The next inmate scheduled for lethal injection at the Southern Ohio Correctional Facility in Lucasville on May 10 is Ronald R. Phillips, convicted in the 1993 rape and murder of his Akron girlfriend’s 3-year-old daughter.

“I continue to wonder: [Judge Merz] seems to base it on uncertainty instead of certainty, and that’s a mistake,” said Judge Raymond M. Kethledge, an appointee of Republican President George W. Bush.

Judge Jane Branstetter Stranch, an appointee of Democratic President Barack Obama, noted that witnesses of multiple executions had not only described movement in executions that used midazolam, but the type of movements they had not seen before.

“How many people do we have to see go through horrific executions ... until somehow you can wrangle all the experts on the same page?” she asked.

The third member of the panel is Judge Karen Nelson Moore, an appointee of Democratic President Bill Clinton.

The state wants to use a massive dose of midazolam, 500 milligrams, followed by rocuronium bromide, the paralytic agent, and finally potassium chloride to stop the heart. While the U.S. Supreme Court has generally upheld the constitutionality of similar protocols, this would mark the first time Ohio would use rocuronium bromide.

Midazolam was the first drug used in the problematic execution of condemned inmate Dennis McGuire of Montgomery County in January, 2014, the most recent execution carried out in Ohio.

Witnesses described McGuire as struggling against his restraints and making choking and snorting sounds for about 20 minutes instead of falling unconscious according to plan.

The problems caused the state to abandon that two-drug process. The other drug at the time was the opiate painkiller hydromorphone.

The next execution of a death row inmate from northwest Ohio is William Montgomery, convicted in the 1986 robbery-related murders of Toledo roommates Debra Ogle, 20, and Cynthia Tincher, 19.

He is set to be executed on Oct. 18.

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

First Published March 8, 2017, 5:03 a.m.