Ohio's top prison officials said the state's death drugs are expired, but they're open to using them anyway, lawyers for death-row inmates said in a Monday court filing. However, a spokesman for Gov. Mike DeWine disputes that characterization and said the governor doesn't support the use of expired drugs in Ohio executions.

The seemingly contradictory statements add even more confusion to the status of executions in the Buckeye State. After a federal judge in January ruled that the state's current protocol essentially is cruel and unusual punishment, DeWine delayed four executions, said he wouldn't use the existing protocol and ordered prison officials to develop a new one. Then, on July 31, he said the state couldn't find companies willing to supply execution drugs and that it was time to discuss an entirely new method.

But at the same time, lawyers for the state have been arguing to the 6th U.S. Circuit Court of Appeals in Cincinnati that Ohio's existing intravenous execution method is constitutional and that the state would use it if the courts so held. And on Wednesday, DeWine press secretary Dan Tierney didn't respond when asked whether the governor is open to using the current protocol.

Now, prison officials are said to have stated under oath that they'd use the existing method even if the drugs were expired.

"At recent depositions taken by plaintiff Cleveland Jackson of Lima, senior ODRC officials admitted that they would be willing to proceed with an execution using the (current) three-drug protocol, and making use of the expired drugs that the agency has in its possession," lawyers for the convicted murderer said in a filing before U.S. Magistrate Judge Michael Merz.

The lawyers said they were working from "rough" transcripts of recent depositions taken from Ohio Department of Rehabilitation and Correction Director Annette Chambers-Smith and Southern Ohio Correctional Facility Warden Ron Erdos, who oversees the death chamber. The transcripts, the lawyers wrote, have not been signed and finalized.

The court filing by the inmates' lawyers says that Erdos testified that the corrections "department is 'permitted to use expired execution drugs' so long as they are tested for potency." Confronted with statements by former prisons Director Gary Mohr that expired drugs would not be used, Erdos said that "can be changed depending on who's in charge."

In an email, Tierney said that DeWine and his staff don't believe the inmates' lawyers got the story right.

"Please note that the administration thinks that the filing mischaracterizes Director Chambers-Smith’s testimony with respect to policy on expired drugs," he said. "While answering hypothetical questions, the director stated merely what policy permits and would need to discuss with the governor the issue of using expired drugs, a conversation which had not yet occurred.

"That being said, Governor DeWine does not support using expired drugs in executions."

Lawyers for the death-row inmates wrote that once they receive an official transcript of the depositions, they are likely to use them to try to stop all execution proceedings against their clients.

They said the use of expired drugs for a therapeutic purpose or an execution is "unacceptable and illegal." Quoting federal law, they wrote, “Prescription drugs that are outdated, damaged, deteriorated, misbranded, or adulterated shall be quarantined and physically separated from other prescription drugs until they are destroyed or returned to their supplier.”

The lawyers wrote, "Although it is defendants’ mandate to carry out Mr. Jackson’s death sentence, they are not so empowered to seek his death by any and all means at hand, nor to violate state and federal laws — to say nothing of their own past promises — simply to speed Mr. Jackson’s demise, at whatever cost."

 

Reach Marty Schladen at mschladen@dispatch.com.