ELYRIA — Prosecutors didn’t like Lorain County Common Pleas Judge James Burge’s ruling last month ordering changes to the state’s lethal injection protocols.

Now, they’re asking the 9th District Court of Appeals to overturn the judge’s order, saying he overstepped his authority.

The state’s decision to appeal doesn’t come as a surprise to Jeff Gamso, an attorney representing accused killers Ruben Rivera and Ronald McCloud, who had argued that the state’s way of executing inmates was unconstitutional.

“I would have been surprised if they hadn’t,” said Gamso, who also serves as the legal director for the American Civil Liberties Union of Ohio.

But before prosecutors can argue that Burge was wrong, they first have to convince the appeals court to even take the case. Burge has said his order doesn’t lend itself to being appealed unless Rivera and McCloud, who could receive a death sentence if convicted in separate Lorain murders, are actually convicted and sentenced to die.

Burge said he hasn’t received a copy of the appeal, filed Thursday, and couldn’t comment on it until he does.

“I’ll wait and see what they have to say,” he said.

Burge held hearings earlier this year over the objections of prosecutors and the state — who contend the current lethal injection process is humane and constitutionally sound — in which experts discussed the state’s execution protocols in depth.

The judge determined that the current method, which uses three drugs — a sedative that puts the condemned prisoner to sleep, a drug that paralyzes him and a final drug that stops the heart — didn’t meet an Ohio state law that requires executions to be quick and painless.

The only way to guarantee that Rivera and McCloud wouldn’t suffer if they are executed, Burge concluded, was for the state to use only one drug, the sedative, to kill them. Both experts agreed that the sedative was powerful enough to kill on its own.

But prosecutors argue that Burge didn’t apply the law correctly and doesn’t have the power to order changes to how the state carries out executions.

They also contend he violated an edict from the U.S. Supreme Court — which upheld Kentucky’s lethal injection protocols earlier this year — that courts shouldn’t try to determine “best practices” for executions.

Prosecutors are also trying to convince the Ohio Supreme Court to remove Burge from a three-judge panel slated to hear the capital murder case of another accused killer, Manuel Nieves, saying the judge’s decision and his friendship with former client James Filiaggi — executed last year for the 1994 murder of his ex-wife — will prevent him from imposing the death penalty in that case if Nieves is convicted.

Burge has countered that he can fairly follow the law and consider death as a possible sentence. He also has said he pushed Filiaggi to make a last-ditch effort to avoid execution as a favor to Filiaggi’s mother.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.

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