Death Row Allergy Claim Fails to Delay Darryl Durr's Execution

Convicted murderer and rapist Darryl Durr was put to death at 10 a.m. ET.

April 19, 2010, 10:16 PM

April 20, 2010— -- A death row inmate who tried to delay his execution by claiming he was allergic to the anesthesia used in the lethal injection was put to death today, right on schedule.

Darryl Durr, 46, was declared dead at 10:36 a.m. ET. Julie Walburn from the Southern Ohio Correctional Facility, where the execution took place, said there were no complications and that the execution went smoothly.

A prison official who was present told ABC News that as the process began Durr clenched his fists and grimaced while holding his head up for about 10 seconds, before putting his head down. The official, who declined to be identified, said it wasn't clear whether Durr was in pain or reacting to the moment.

Durr had been convicted of the rape and murder of 16-year-old Angel Vincent in 1988. He is the 37th inmate executed in Lucasville, Ohio's so-called "death house" at the Southern Ohio Correctional Facility since 1999 and the fourth person to be executed in Ohio this year.

"Serial rapist Darryl Durr kidnapped, raped, and murdered 16-year-old Angel Vincent. Durr's punishment finally gives justice to the family of the victim for Durr's brutal and unforgivable crimes," Ryan Miday, a spokesman for Cuyahoga County Prosecutor Bill Mason, told ABC News last night.

Mason prosecuted Durr in his 1988 trial and has remained engaged in Durr's subsequent appeals.

Durr attempted last week what was called in reports a "unique" appeal, reportedly the first of its kind, when his defense lawyer Kathleen McGarry told the Ohio District Court Judge Gregory Frost that she found evidence that Durr was allergic to anesthesia after reviewing his 800-page medical history report, court records say.

McGarry said in court documents she wasn't aware of the exact allergy Durr had, but wanted to make sure it didn't include thiopental sodium, the anesthetic Ohio uses in its lethal injection.

"One of the things the Ohio Constitution guarantees is that he has a quick and painless execution," McGarry said to the Associated Press last week.

"If he's going to react to the anesthetic drugs in such a manner that he's going to have a violent reaction, either vomiting or seizures or whatever the spectrum is that could happen, then obviously the execution has problems," she said.

Ohio became the first state last year to switch to a single dose of anesthetic to put inmates to death, rather than the three-drug cocktail used by other states.

A Columbia University Medical Center anesthesiologist filed an e-mail as part of Durr's appeal saying if he did have an allergy to thiopental sodium, it may pose a problem.

Durr's Appeal Claimed Allergy Could Pose Problem During Execution

"An allergic or other adverse reaction to some component of a general anesthetic might present a serious problem for an execution by lethal injection," the email from Mark Heath said.

McGarry cited other cases involving adverse reactions to execution methods in her appeal. In 1989, Texas death row inmate Stephen McCoy began choking and seizing after receiving lethal injection chemicals causing a witness to faint, according to reports. In 1992 death row prisoner Robyn Lee Parks' muscles in his jaw, neck, and abdomen began to spasm about two minutes after the drugs started to flow during his execution in Oklahoma. However, according to reports, the exact cause for those reactions was undetermined in each case.

Frost allowed the records to be reviewed, but on Friday he ruled there wasn't enough evidence given that the allergy could in fact impact the execution. Frost also said in his ruling that Durr's legal team waited too long to file this appeal, and relied too heavily on speculation for the appeal.

"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. "Speculation is not evidence, however."

The state hired their own expert to review the appeal, who found there was no evidence to say that Durr wouldn't already be unconscious from the anesthesia before any allergy would set in. Mark Dershwitz, a University of Massachusetts professor and physician, told the state in an e-mail submitted as part of the state's filing on the appeal that the worst type of allergic reaction to anesthesia would result in death from low blood pressure and impaired breathing.

"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," Dershwitz wrote.

According to Frost's ruling, Durr had dental surgery in 2004, and surgery for a hernia in 2007 and Frost wrote he could have known about his allergy as early as 2004.

Durr was allegedly given hydromorphone in 2004 and 2007 following surgery with no ill effects. Hydromorphone is used in Ohio's backup execution method.

The appeal on the grounds of an allergy has been cited in reports as the first of its kind. The only appeal similar was convicted killer Richard Cooey's unsuccessful argument in 2008 that his obesity caused poor vein access.

"It's a desperate twist on the 'cruel and unusual punishment' argument inmates have concocted to contest lethal injection," Miday said. "Too allergic to die won't work any better than Richard Cooey's 'too fat to die.'"

Witnessing Durr's execution this morning was McGarry, Durr's spiritual advisor Rev. Georgina Thornton, and Matthew Princehorn, a friend of Durr's according to Walburn.

Also there to witness the exection was Norma Godsey, Angel Vincent's mother, Wesley Brewer, her uncle, and Corennia Hatfield, her aunt, Walburn said.

According to Walburn, Durr did not request a special last meal and had spent the day yesterday not eating or drinking, observing what he called a religious fast.

"He didn't request a special meal at all," Walburn said. "The staff said he was very quiet, very easy to work with."

McGarry could not be reached for comment.

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