Judge: No allergy risk proven for Ohio execution

Condemned killer Darryl Durr waited too long to raise the issue of an allergy

Associated Press

COLUMBUS, Ohio — An inmate scheduled to die next week for raping and strangling a 16-year-old girl has failed to present enough evidence of an allergy to anesthesia that could affect the execution, a federal judge ruled Friday.

Condemned killer Darryl Durr waited too long to raise the issue of an allergy and then relied mainly on speculation to ask for time to investigate, said U.S. District Judge Gregory Frost.

"Durr presents this court with an unproven allergy that might have an unknown effect on his execution and asks for time to fill in details that may or may not rise to the level of demonstrating a likelihood of success," Frost wrote in the afternoon ruling.

"Speculation is not evidence, however," Frost said.

Durr's attorneys immediately appealed the judge's ruling and a second ruling rejecting Durr's request for more DNA testing.

In an unusual legal maneuver, Durr is 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. But the state, quoting a medical expert, also said there is no proof that an allergic reaction would occur before Durr was already deeply unconscious from the drug.

The worst type of allergic reaction to anesthesia results in death from low blood pressure and impaired breathing, the state added.

"Such effects are irrelevant in the context of an execution because they would occur after the inmate loses consciousness and because the intent is to bring about a rapid death," according to Mark Dershwitz, a University of Massachusetts professor and physician, told the state in an e-mail submitted as part of the state's filing.

Durr had dental surgery in 2004 and a hernia operation in 2007. Durr could have known about the allergy as long ago as 2004 and appeared to know in 2007, Frost said in describing why Durr waited too long to raise the issue.

Durr's lawyers on Friday defended their reliance on information that came mainly from Durr's own recollections of what medical personnel had told him.

"It seems unlikely that a person about to have a surgery would make up information," Durr's attorneys wrote in a court motion Friday.

They argue they need time to collect more information about Durr's medical history.

The state used two separate examinations of Durr's medical records to make its argument opposing the request.

The first was a one-page form referring to an apparent medical procedure in April 2007 that was not part of the records Durr submitted to the court.

That form indicates Durr has no allergies, and that he received hydromorphone, the painkiller prescribed for Ohio's backup execution method.

The state also says medical records submitted by Durr show he received hydromorphone in June 2004 with no problems.

Durr submitted the records Thursday and they were filed under seal Friday by order of Frost to prevent the viewing of personal information.

Also Friday, a federal judge refused to stop the execution based on Durr's request for more DNA testing but referred the issue to a federal appeals court.

U.S. District Court Judge George Smith rejected Durr's claim that the state is violating his constitutional rights by refusing to test for DNA on a necklace found on the victim that Durr says could implicate another suspect.

Experts have testified there would be no DNA on the necklace that Angel Vincent was wearing when her decomposed body was found.

Officials also couldn't guarantee the necklace had been preserved properly as evidence, ruining the chance of obtaining any results that could be used in court.

DNA testing of other biological evidence preserved from Vincent's body that was done last year at Durr's request found no DNA other than Vincent's.

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