Execution goes down to wire

The U.S. Supreme Court on Monday night considered at least one last-minute appeal regarding Arkansas’ plans to execute inmate Don Davis after state officials withdrew efforts to kill a second prisoner last night.

As it stood about 8 p.m., the executions of Davis and Bruce Ward — both originally scheduled for lethal injection Monday — were blocked pending a decision from the nation’s highest court, but there was no order stopping the planned executions of five other inmates between Thursday and April 27.

Attorney General Leslie Rutledge’s office appealed the Arkansas Supreme Court decision barring Davis’ execution but declined to contest a similar stay granted for Ward. The men spent more than two decades on death row after murder convictions.

Gov. Asa Hutchinson originally scheduled the lethal injection of eight inmates this month — two a night on consecutive Mondays and Thursdays — after the U.S. Supreme Court declined to hear a years-old challenge by death-row inmates.

The schedule drew international media attention to Arkansas — which had not executed a prisoner since 2005 — as the condemned inmates sought court orders to stop their executions.

The Arkansas Supreme Court’s decision Monday to temporarily shield Davis and Ward from lethal injection came shortly before a federal appellate court decided that Arkansas could proceed with its plans to kill as many as eight inmates by April 27.

Davis was initially scheduled to be executed about 8:15 p.m. Monday, after Ward, according to testimony last week in federal district court.

Prison officials over the weekend moved Davis to a holding cell adjacent to execution chamber at the Cummins Unit, state Department of Correction spokesman Solomon Graves said.

Monday, Davis ordered a last meal — fried chicken,

great northern beans, mashed potatoes, glazed carrots, rolls, fruit punch and strawberry cake.

Prison officials said they didn’t know whether the inmate talked with a spiritual counselor during the day. One of Davis’ attorneys and a longtime friend, Deborah Sallings of Little Rock, said last week that she planned to be at the prison with him Monday.

Davis was convicted in the execution-style shooting of 62-year-old Jane Daniel in her Northwest Arkansas home in 1992.

Prosecutors said Davis robbed a neighbor’s house and saw Daniel returning from errands. He walked her through her house at gunpoint, forcing her to hand over valuables. Daniel was found dead in her basement, shot through the back of the head.

Ward, who remained at the state’s high-security Varner Unit on Monday, was convicted in the 1989 killing of 18-yearold convenience-store clerk Rebecca Lynn Doss.

Execution warrants for Davis and Ward were to expire at midnight. Hutchinson could let the warrants lapse if the executions were not carried out by that time, or he could grant a “reprieve,” spokesman J.R. Davis said. The reprieve would allow Hutchinson to reschedule the execution without triggering a new clemency process, Davis said.

APPEAL TO HIGHEST COURT

The Arkansas Supreme Court’s decision — by a 4-3 vote — granted the Davis and Ward stays after inmates’ attorneys argued they would be affected by a pending case before U.S. Supreme Court that originated in Alabama.

Arguments are scheduled to begin Monday in the case, which aims to determine whether indigent defendants are entitled to a medical expert, independent of the state, who can evaluate the defendant and assist in his trial defense.

Rutledge’s office at about 7 p.m. appealed the Davis stay to the U.S. Supreme Court. J.R. Davis, the governor’s spokesman, said shortly after 8 p.m. that Don Davis’ attorneys had filed a response brief and that

a decision could come down “within the hour.”

The state did not appeal either of two separate stays blocking the execution of Ward — the Arkansas Supreme Court on Friday granted separate emergency relief amid claims that Ward is incapable of comprehending his punishment.

In a ruling that affected all eight inmates the state scheduled to die this month, the 8th U.S. Circuit Court of Appeals on Monday reversed a federal judge’s decision that would have temporarily blocked their execution.

As of 8:15 p.m. Monday, attorneys for the eight inmates had not appealed that decision.

The appellate court in its 7-1 decision found that the evidence did not show the state’s protocol for executing prisoners is very likely to “cause severe pain and needless suffering.”

“Even assuming a risk of pain from the current method,” the inmates did not provide a “known and available alternative” to Arkansas’ execution method that would significantly reduce that risk, the opinion says.

The U.S. Supreme Court in 2015 established that twopronged test in a 5-4 decision in a case challenging the use of midazolam.

Inmates argued that the use of the sedative midazolam risked inflicting severe pain because of concerns that the drug would not render inmates unconscious before the second and third drugs, a paralytic and the heart-stopping potassium chloride, are administered.

In ruling for the inmates early Saturday morning, U.S. District Judge Kristine Baker found inmates offered multiple available alternative execution methods.

Those included replacing midazolam with a barbiturate more likely to render the inmates unconscious; using an inhaled anesthetic at such a high dose that it is the sole drug necessary; pumping nitrogen through a gas mask to deprive an inmate of oxygen; and deploying a firing squad.

The 8th Circuit said Arkansas was previously unsuccessful in obtaining barbiturates and that the inhaled anesthesia and nitrogen alternatives have never been used in executions. A firing squad “is allegedly painless only if the volleys are targeted precisely,” the 8th Circuit opinion says.

Baker also ruled in her injunction order that Arkansas’ execution-viewing policies impeded the prisoners’ right to counsel and the courts. However, she signed a joint agreement Monday to revise the policies.

The changes allow an additional inmate attorney to witness the execution and give one attorney per inmate quicker access to a cellphone in the event he needs to quickly petition the court.

“We negotiated it out and came to that language,” said Jeff Rosenzweig, an attorney for some of the inmates.

In a separate ruling, the 8th Circuit also sided against the inmates in their appeal of Baker’s ruling in which she said that the compressed execution schedule — originally eight inmates over 11 days — does not cause needless suffering or impede their right to counsel.

A federal judge’s order preventing the execution of an eighth inmate, Jason McGehee, remains in place. After the state Board of Parole recommended clemency for McGehee, a judge ruled that the state could not execute him on his assigned date of April 27 without running afoul of a required review period.

The state has not appealed that order, and Hutchinson has not said whether he will grant a more lenient sentence.

‘HERE TO BE A VOICE’

At the gate of the Cummins prison Monday evening, prison official James Gibson warned members of the media that fire ants were rampant in the two separate areas for protesters marked off with yellow safety tape.

He pointed to the area to the left for those who favor the death penalty and said, “So far no one has shown up.”

Gibson then nodded to the other yellow-taped area in front of him, next to the road.

“Only got two of them there,” said Gibson, who is deputy warden of the state’s prison unit in Malvern.

Standing in blue shirts with the logo “Arkansas Abolish the Death Penalty,” Abraham Bonowitz, 50, of Columbus, Ohio, and Randy Gardner, 58, of Salt Lake City paced back and forth on the grass.

Bonowitz, co-founder of Death Penalty Action, based in New York, said he will remain in the state until the executions have been called off or are completed.

“I’m simply here to be a voice,” Bonowitz said.

He said his problem with the death penalty is that there is no equal justice under the law because it is skewed by race, gender and socioeconomic factors. He has sympathy for the victims’ families but said emotional closure will not be found by executing the perpetrators.

“The victims are a minor sideshow in this circus Arkansas has created in the eyes of the world,” Bonowitz said.

Doing away with the death penalty — which costs states millions of dollars each year in court costs and other expenses — would create revenue streams to better help the victims and help prevent crime, such as funding for a larger police force, Bonowitz added.

“We could do so much better for the victims’ families,” he said.

For Gardner, the fight is personal.

On June 18, 2010, at a Utah prison, Gardner’s younger brother, Ronnie Lee Gardner, became the last man in the United States to be executed by firing squad. He had spent 25 years on death row before his death.

At an October 1984 court hearing for killing a man during a Salt Lake City robbery, Ronnie Gardner fatally shot attorney Michael Burdell during an attempted escape.

Randy Gardner winced when asked about his brother’s victims.

“I feel terrible for the victims,” Randy Gardner said. “But I’m pissed at the government for doing the same thing.”

Ronnie Gardner was stood up against a wall while five shooters took aim from 25 feet away and counted down, firing at the number two instead of the customary one, he said.

“They blew his heart out his back,” Randy Gardner said, adding that he obtained the autopsy pictures of his brother to use in the many protests he’s participated. “His white socks were red with blood. His body was destroyed.”