A condemned killer of two people asked the state’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.
A message was left with Cuyahoga County prosecutors, who are expected to oppose the request. The court didn’t indicate when it would rule, though an early Wednesday decision was likely.
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.
Late Tuesday, the U.S. Supreme Court denied a last-minute request from Otte to delay the execution.
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. Otte was scheduled to visit with his attorneys, brother and sister and parents.
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.
Otte will be housed in a cell near the death chamber for the rest of Tuesday and early Wednesday.
His requested final meal, called the special meal in Ohio, includes a mushroom and Swiss cheese hamburger, a quart of Heath Bar ice cream and a slice of banana cream pie.
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.