A condemned killer of two people asked Ohio’s highest court Tuesday to delay his upcoming execution so he can argue he was too young at the time of his crimes to be put to death.
Attorneys for Gary Otte want the court to follow the ruling of a Kentucky court last month that found the death penalty unconstitutional for people who were under 21 at the time they committed their crimes.
Otte, now 45, was 20 when he killed Robert Wasikowski and Sharon Kostura in Parma, in suburban Cleveland, in 1992. His execution is scheduled for Wednesday morning.
‘The current scientific understanding of adolescent development underscores why their moral culpability is reduced making them categorically exempt from the death penalty,’ his attorneys argued.
Meanwhile, his requested final meal, called the special meal in Ohio, was announced. It includes a mushroom and Swiss cheese hamburger, a quart of Heath Bar ice cream and a slice of banana cream pie.
Gary Otte, 45, was 20 years old when he killed Robert Wasikowski and Sharon Kostura in Ohio. He is due to be executed in Ohio on Wednesday, but is currently arguing that the the death penalty unconstitutional for people who were under 21 at the time they committed their crimes
A message was left with Cuyahoga County prosecutors, who are expected to oppose the request.
The last-ditch request to the Ohio Supreme Court came a few hours after a lower court rejected the appeal. Otte’s argument can’t be raised under Ohio law or current federal court rulings, the 8th Ohio District Court of Appeals said.
The Kentucky court ruling isn’t binding on Ohio courts, and the U.S. Supreme Court hasn’t addressed the issue of whether being under 21 at the time of a crime precludes people from execution, the appeals court said.
The state, meanwhile, continued preparations for the execution. Otte arrived at the state death house in southern Ohio on Tuesday morning, prisons spokeswoman JoEllen Smith said.
Inmates are typically transported to the Southern Ohio Correctional Facility from death row – currently housed in Chillicothe – about 24 hours ahead of their execution. Their last day is spent with visitors.
Last week, a federal judge rejected Otte’s argument that the first drug in Ohio’s lethal injection method, a sedative called midazolam, creates an unconstitutional risk of serious pain by failing to render inmates deeply unconscious. Otte is not appealing that decision.
Pictured is a hamburger with Swiss cheese and mushrooms. It is one of the items that Otte asked for as part of his last meal
Otte also asked for a slice of banana cream pie and a quart of Heath Bar ice cream
Otte will be housed in a cell near the death chamber for the rest of Tuesday and early Wednesday.
Relatives of Wasikowski and Kostura planned to witness the execution. Ministers and a nurse observing the procedure in case of problems planned to witness on Otte’s behalf.
The state plans to execute Otte with a lethal combination of three drugs, though a federal appeals court is considering Otte’s argument that the first drug in the process creates an unconstitutional risk of severe harm.
Otte has argued that the state’s use of 500 mg of the anesthetic midazolam would not render him sufficiently unconscious as to spare him from excruciating pain, an argument a federal magistrate struck down on Friday.
That drug is followed by a paralytic agent and finally potassium chloride, which stops the heart.
Pictured is one of Otte’s victims, Robert Wasikowski. Otte has blamed his action on his addiction to crack cocaine and says that he has since ‘[taken personal responsibility for my life and became accountable for my future actions’
Otte’s murder spree began on February 2, 1992, when Otte asked 61-year-old Wasikowski to use his telephone.
He shot the war veteran in the head and stole $413.
The next day, Otte returned to the same apartment complex and forced his way into the home of Kostura, 45.
He shot her in the head and stole $45, her car keys, and her checkbook.
Otte waived his right to a jury trial and was convicted on multiple counts of aggravated murder, robbery and burglary by a three-judge panel.
On Friday, Otte spoke out in a letter published by Splinter News, writing at length about the drug epidemic and calling for a renewal of religion.
Otte unsuccessfully argued that Midazolam, one of the three drugs with which he is to be executed, creates an unconstitutional risk of severe harm
‘I was a drug addict. I became addicted to crack cocaine which led to me being in prison for the past twenty five years and on death row,’ he wrote.
‘I took personal responsibility for my life and became accountable for my future actions,’ Otte continued.
‘The fears I once operated from have vanished through my reliance on God for all my support. I am no longer defined by my past failures, but by God’s love.’
A federal magistrate cleared the way for the execution to proceed on Friday, leaving it up to an appeals court as Otte’s final hope for a stay.
The first drug in Otte’s planned execution, a sedative called midazolam, was also used in problematic executions in Arizona and Oklahoma.
But midazolam has also been used in executions without discernible problems, including in a July execution in Ohio.
Otte and other inmates continue to challenge the use of midazolam, saying it may not render prisoners so deeply unconscious that they avoid suffering serious pain when the last two drugs are administered.
Lawyers say observations by an expert witness showed Phillips’ executioners didn’t carry out a “sufficient consciousness check” after midazolam was administered.
A federal judge is expected to rule early this week.