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April 19, 2017

After Monday stays, Arkansas officials seemingly on path to complete next pair of scheduled executions... OR NOT, as updated below....

As reported in this new AP piece, "two Arkansas inmates set to die this week in a double execution filed more legal challenges Wednesday, but so far the pair is hitting roadblocks as a judge weighs a new attempt to prevent the state from using one of its lethal injection drugs in what would be the state's first executions in nearly a dozen years."  Here is more about the continuing litigation as the next set of execution dates approach:

Unless a court steps in, Ledell Lee and Stacey Johnson are set for execution Thursday night, and state prison officials have already moved them from death row to the nearby prison that houses the death chamber. It's the second time this week that Arkansas has moved forward with what originally had been a plan to execute eight men before April 30, when its supply of the drug midazolam expires.

On Monday, the Arkansas Supreme Court blocked the executions of two men set to die that night. A third man has received a stay from a federal judge over issues with his clemency schedule. Five inmates still face execution over the next two weeks, and they've filed a series of court challenges in hopes of stopping that.

The latest request, filed Wednesday, asks the U.S. Supreme Court to take the inmates' case that challenges the use of midazolam, a sedative used in flawed executions in other states. It's one of three drugs Arkansas plans to use in its executions. In 2015, justices upheld Oklahoma's execution protocol that used the same drug. "As pharmaceutical companies become increasingly resistant to allowing their products to be used in executions, states are likely to continue experimenting with new drugs and drug combinations, and death-row prisoners may challenge these new protocols as violating their constitutional rights," the filing before the U.S. Supreme Court said.

The Arkansas attorney general's office countered in a court filing Wednesday that the inmates' request was a last-minute effort to "manipulate the judicial process."...

Another case that could trip up Arkansas' plan was filed Tuesday by the medical supplier McKesson Corp., which says it sold the drug vecuronium bromide to the Arkansas Department of Correction for inmate medical care, not executions. The company sued to stop Arkansas from using the drug in the planned lethal injections, and a hearing over that issue was underway in Little Rock on Wednesday afternoon.

A state prison official testified that he deliberately ordered the drug last year in a way that there wouldn't be a paper trail, relying on phone calls and text messages. Arkansas Department of Correction Deputy Director Rory Griffin said he didn't keep records of the texts, but McKesson salesman Tim Jenkins did. In text messages from Jenkins' phone, which came up at Wednesday's court hearing, there is no mention that the drug would be used in executions.

Lee and Johnson both faced setbacks Tuesday in their quest to get more DNA tests on evidence in hopes of proving their innocence. Lee claims tests of blood and hair evidence that could prove he didn't beat 26-year-old Debra Reese to death during a 1993 robbery in Jacksonville. Johnson claims that advanced DNA techniques could show that he didn't kill Carol Heath, a 25-year-old mother of two, in 1993 at her southwest Arkansas apartment....

"It is understandable that the inmates are taking every step possible to avoid the sentence of the jury; however, it is the court's responsibility to administer justice and bring conclusion to litigation," Gov. Asa Hutchinson said Tuesday in an emailed statement. "It is that process that we are seeing played out day by day, and we expect it to continue."

UPDATE: This new Washington Post article, headlined "Arkansas courts stay execution, block state from using lethal injection drug," reports on why I reported too soon on the latest execution plans in Arkansas. Here are the latest details:

Arkansas courts on Wednesday dealt another pair of blows to the state’s plans to resume executions Thursday night, the latest in a series of legal rulings imperiling the scheduled flurry of lethal injections.

In one case, a state court halted an execution scheduled for Thursday night, while a state judge separately barred the use of a lethal injection drug, potentially blocking all of the planned executions.

The rulings come as Arkansas, seeking to carry out its first executions since 2005, has become the epicenter of capital punishment in the United States because of its frantic schedule. Gov. Asa Hutchinson (R) originally scheduled eight executions in 11 days, an unprecedented pace, which drew national scrutiny and criticism....

After the first planned executions were halted, Arkansas officials pointed to legal victories they won the same day and vowed to press on with them, beginning with two scheduled for Thursday night. “There are five scheduled executions remaining with nothing preventing them from occurring, but I will continue to respond to any and all legal challenges brought by the prisoners,” Arkansas Attorney General Leslie Rutledge (R) said in a statement after the U.S. Supreme Court denied her request to allow one execution to proceed Monday. “The families have waited far too long to see justice, and I will continue to make that a priority.”

Challenges to the executions are not only being brought by the inmates. McKesson, the country’s largest drug distributor, said a court on Wednesday granted its request for a temporary restraining order keeping Arkansas from using a drug the company says was obtained under false pretenses. The judge issued a verbal order from the bench, according to the Arkansas Democrat-Gazette; no injunction was filed in court records by early Wednesday night. A spokesman for Rutledge did not immediately have a comment on this order, but it is expected that she would appeal to the state Supreme Court....

The Arkansas Supreme Court also stopped one specific execution set for Thursday, saying just over 24 hours before it was scheduled to occur that it was staying it without explanation. In its order, the state Supreme Court narrowly blocked the execution of Stacey E. Johnson, 47, who has been on death row since 1994. The court said Johnson should be allowed to press on with his motion for post-conviction DNA testing. Johnson was sentenced to death for the murder of Carol Jean Heath, a woman brutally killed in her home.

Three justices dissented from the decision, with all three joining in a dissent saying the stay in this case “gives uncertainty to any case ever truly being final in the Arkansas Supreme Court.”...

Johnson is one of two inmates facing execution Thursday night. The other, Ledell Lee, has appealed his execution, arguing that he has an intellectual disability and seeking to prove his innocence. Both men are also among a group of death-row inmates who have petitioned the U.S. Supreme Court to stay the executions, one of several legal battles being waged between the state and the inmates.

April 19, 2017 at 06:12 PM | Permalink


The same 4 justices of the Arkansas Supreme Court has issued a stay for Johnson. It seems the majority on that court will delay any execution for whatever reason.

Posted by: DaveP | Apr 19, 2017 7:47:20 PM

McKesson has zero legal standing.

Posted by: David Behar | Apr 19, 2017 10:09:06 PM

We discussed the European death penalty, called, suicide, by left wing phonies. The wrongful death suit will be far cheaper than death penalty appellate costs.


Massachusetts likes to imitate Europe.

Here we go.


Arkansas, please, take note. End the drama. End the death penalty, and go European, as Massachusetts has.

Posted by: David Behar | Apr 20, 2017 7:22:27 AM

DaveP--then it is time for the governor/AG to criticize these criminal coddling judges in the harshest possible terms. Let them feel the wrath of the public.

Posted by: federalist | Apr 20, 2017 11:37:10 AM

Justices Wynne, Danielson and Hart are anti death penalty. They were the 3 justice minority last June when the LI
statute was upheld. The author of the
majority opinion favoring the state, Courtney Hudson Goodson has voted to stay every execution so far. A deeply divided court to say the least.

Posted by: DaveP | Apr 20, 2017 12:06:52 PM

The justices were also elected by the public. Perhaps, many voters are generally aware of their overall leanings here, reflecting the deep divided nature of the community at large -- one where a middle third or so support the death penalty but quite warily.

Anyway, now we are going after state judges for "coddling criminals" (aka deciding things in the "wrong way" ... cf. how many here respond when judges protect sexual offenders in various cases). Of course, that's a way to go. But, the public did elect the judges.

Posted by: Joe | Apr 20, 2017 4:10:19 PM

Yes, Joe they did, and this is why you call them out. Apparently, Joe, you like to live in a world where the Scalias of the world get savaged in the press (remember the BS Dick Cheney recusal nonsense) and where the press and pols mischaracterizes Lily Ledbetter, but god forbid sauce for the goose gets served.

Posted by: federalist | Apr 20, 2017 5:06:02 PM

No, I'm open to all sides being critiqued, and I won't toss in my opinion on specific cases while saying such basic principles here.

The point holds. The judges were elected by the public, who like them, are greatly split on these questions. Also, you repeatedly criticize federal judges for not respecting state actors appropriately. Now, it's state judges.

At some point, just seems you disagree, and toss out 'coddling' etc. for emotional effect.

Posted by: Joe | Apr 21, 2017 2:44:25 PM

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