2 death-row inmates lose stays of execution
Ruling comes on day state drug expires
The Arkansas Supreme Court on Thursday lifted stays of execution for two condemned killers who had been scheduled to die almost a year ago — though one of the men still has court rulings preventing him from being put to death.
Even as the high court’s ruling came down, one of the three drugs used in Arkansas’ execution protocol expired Thursday. No executions are currently scheduled.
In separate rulings, a divided court said Bruce Earl Ward and Don Davis were not entitled to new sentencing hearings in which they could argue anew their claims of mental incompetence.
Both men were scheduled to die April 17, 2017, only to have their punishments delayed by the state’s justices, who wanted to see how the U.S. Supreme Court would rule in a then-pending case over an Alabama inmate’s claims that he had the right to have an independent expert examine his competency.
The U.S. justices decided that case, McWilliams v. Dunn, in June. A majority of the court held that an Alabama state hospital’s examination of death-row inmate James McWilliams did not satisfy the court’s previously established constitutional right to a “competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.”
In oral arguments before the Arkansas Supreme Court in January this year, federal public defenders argued that Ward and Davis — who were both evaluated at the State Hospital in Little Rock before their sentences were handed down — should be given the same relief.
State attorneys, however, argued that nothing had substantially changed since the Arkansas Supreme Court last ruled in 2015 that a State Hospital examination satisfied the constitutional requirement for a “competent psychiatrist.” The court’s majority agreed, and Thursday’s order lifted the stays that justices had placed on Ward’s and Davis’ executions last year.
“Simply put, McWilliams did not answer the question Ward was relying on in seeking relief in this motion,” Justice Karen Baker wrote in one of two majority opinions. “McWilliams did not establish new law.”
Speaking after January’s oral arguments, federal public defenders for the two inmates said an adverse decision by the court would be ripe for an appeal to the U.S. Supreme Court. In a text message Thursday, one of the attorneys suggested that was still the case.
“We usually pursue any available avenue for relief and I don’t see why that would change here,” said John C. Williams, who works at the federal defenders’ capital habeas unit in the U.S. District Courthouse in Little Rock.
At a news conference Thursday at the state Capitol, Attorney General Leslie Rutledge said she was reviewing the status of both men’s cases to determine if the state can begin the process of scheduling an execution. Gov. Asa Hutchinson sets execution dates.
Joining Baker in the majority were Justices Shawn Womack, Courtney Goodson, Rhonda Wood and Robin Wynne.
Chief Justice Dan Kemp and Justice Josephine Hart dissented in Ward’s case and joined a concurrence in Davis’ case, in which Hart wrote that it could not be determined whether the trial court actually declined to allow an independent examiner to assist the defense.
Separate from Thursday’s ruling, Ward, 61, still has an active stay barring his execution as the Arkansas Supreme Court considers his challenge of a state law giving the prison director the authority to determine whether Ward is mentally fit for execution.
Davis, 55, has no remaining stays barring his execution, but he does not have an execution day scheduled. If a date is set, Davis would have another opportunity to go before the Parole Board to seek clemency.
A series of handwritten motions was filed with the high court last year in which Davis asked permission to fire his legal team and drop his appeals, though he did not explain why he wished to do so. The court denied his requests.
Both Ward and Davis are among the longest-serving prisoners on Arkansas’ death row at the Varner prison, having been incarcerated for capital murder since the early 1990s.
Ward was convicted for the 1989 slaying of Rebecca Doss, a clerk who was strangled in the restroom of a convenience store on Rodney Parham Road in Little Rock, where she worked. Ward was found at the scene by officers.
One year later, in Rogers, Jane Daniel was found in the basement of her home, dead from a gunshot wound in the head. Davis was convicted of the killing in what was described to the jury as a robbery gone awry. Davis later apologized for his crimes. Several times both men have been given a set day to die, only to have courts intervene. Most recently, last April, the pair were to be the first in a series of four double executions scheduled to be carried out over 11 days.
After the Arkansas Supreme Court stayed Ward’s and Davis’ executions, the state was ultimately able to carry out four of the eight planned lethal injections.
A supply of vecuronium bromide used in those executions expired Thursday, and a prison spokesman said the Department of Correction had yet to acquire a new batch of the paralytic.
In another development Thursday, prison officials announced that staff vacancies at two prisons — the Cummins Unit, where the state’s execution chamber is, and the Varner Unit, where death-row inmates are housed — had become so severe that other facilities were being shuttered in order to reassign employees.
Last year’s executions were scheduled for the evening at Cummins, in Grady, and extra staff members were scheduled those nights in order to accommodate the flow of media, state officials and witnesses into the prison, as well as to carry out the executions.
The chronic shortage of officers, however, would not affect the prisons’ ability to carry out executions should they begin again, spokesman Solomon Graves said Thursday.
“We are confident in our ability to carry out that sentence,” Graves said.