Court steps in hours be­fore planned Arkansas ex­e­cu­tion

The Washington Post - - POLITICS & THE NATION - BY MARK BER­MAN

Arkansas was pre­par­ing to carry out the state’s first ex­e­cu­tion in more than a decade Fri­day morn­ing even as the U.S. Supreme Court tem­po­rar­ily post­poned the lethal in­jec­tion and other ap­peals threat­ened fur­ther de­lays.

Arkansas ex­pected to be­gin an un­prece­dented wave of ex­e­cu­tions this week, plans that were im­per­iled by a se­ries of court or­ders halt­ing some of the eight lethal in­jec­tions orig­i­nally set for April.

As part of its ag­gres­sive sched­ul­ing, Arkansas planned to carry out back-to-back ex­e­cu­tions on Thurs­day night at a state prison south­east of Lit­tle Rock. But that was aban­doned when a state court blocked one of those lethal in­jec­tions, and of­fi­cials in­stead fo­cused solely on plans to ex­e­cute Ledell Lee, 51, by lethal in­jec­tion.

Lee was sen­tenced to death in 1995 for the killing of De­bra Reese, who was bru­tally beaten to death in her home two years ear­lier. Ac­cord­ing to court pe­ti­tions and his at­tor­neys, Lee has long de­nied in­volve­ment in Reese’s death, and he was seek­ing DNA test­ing to try to prove his in­no­cence.

Ap­peals filed by Lee’s at­tor­neys hop­ing to de­lay his ex­e­cu­tion were re­jected by the U.S. Court of Ap­peals for the 8th Cir­cuit. He also pe­ti­tioned the U.S. Supreme Court not long af­ter jus­tices Thurs­day night de­nied other stay re­quests filed by sev­eral Arkansas death-row in­mates. Lee filed a vol­ley of ap­peals at the high court seek­ing a stay of ex­e­cu­tion, say­ing that tech­nol­ogy ex­ists that could ver­ify his in­no­cence and ar­gu­ing that he has an in­tel­lec­tual dis­abil­ity that should pre­vent his ex­e­cu­tion.

“It is in­ap­pro­pri­ate for the state to rush to ex­e­cute be­fore a de­fen­dant’s in­no­cence claim can be prop­erly ex­am­ined,” Nina Mor­ri­son, a lawyer with the In­no­cence Project and an at­tor­ney for Lee, said in a state­ment Thurs­day.

Jus­tice Samuel A. Al­ito Jr., who is as­signed cases from the fed­eral cir­cuit cov­er­ing Arkansas, then is­sued an or­der push­ing Lee’s ex­e­cu­tion back un­til 8:30 p.m. lo­cal time in Arkansas “or pend­ing fur­ther or­der of the un­der­signed or of the Court, whichever is later.”

If Lee’s ex­e­cu­tion is car­ried out, he would be the first Arkansas in­mate put to death in 12 years. Af­ter two sched­uled ex­e­cu­tions were blocked this week, Arkansas had shifted its fo­cus to a pair of lethal in­jec­tions — Lee’s and Johnson’s — that were sched­uled to take place back-to-back Thurs­day night.

Court or­ders is­sued Wed­nes­day threat­ened to de­rail the state’s plans: The Arkansas Supreme Court stayed Johnson’s ex­e­cu­tion, which had been planned for Thurs­day, while a state cir­cuit court judge is­sued a broader or­der that tem­po­rar­ily pro­hib­ited the state from us­ing one of its three lethal-in­jec­tion drugs.

State of­fi­cials chal­lenged both or­ders on Thurs­day, and they suc­ceeded in one case but were de­nied in the other. The Arkansas Supreme Court granted a re­quest to stay the or­der pre­vent­ing of­fi­cials from us­ing the lethal in­jec­tion drug, which the state had called a de facto stay of all planned ex­e­cu­tions. That same court then re­jected a re­quest to lift its stay halt­ing Johnson’s ex­e­cu­tion.

The court of­fered no ex­pla­na­tion for the or­der, say­ing only that Johnson, who has been on death row since 1994, should be al­lowed to press on with his mo­tion for post-con­vic­tion DNA test­ing. Johnson, 47, was sen­tenced to death for the mur­der of Carol Jean Heath, a woman bru­tally killed in her home.

The Arkansas at­tor­ney gen­eral does not plan to fur­ther ap­peal Johnson’s stayed ex­e­cu­tion, which did not oc­cur Thurs­day night.

Arkansas au­thor­i­ties were ex­pected to con­test other court or­ders that might block their path in this or other ex­e­cu­tions, much as Lee’s at­tor­neys were likely to mount chal­lenges in an ef­fort to halt the lethal in­jec­tion. The state and death-row in­mates have been wag­ing bat­tles in state and fed­eral courts over th­ese lethal in­jec­tions.

The broader fight in Arkansas cen­ters on the state’s ag­gres­sive plan to carry out ex­e­cu­tions for the first time since 2005. Ear­lier this year, Gov. Asa Hutchin­son (R) sched­uled eight ex­e­cu­tions over 11 days in April, a pace un­matched for the mod­ern Amer­i­can death penalty. Hutchin­son said that it was not his pref­er­ence, but that it is nec­es­sary be­cause one of the state’s lethal-in­jec­tion drugs will ex­pire at the end of the month.

Arkansas of­fi­cials have de­fended the sched­ule be­cause they have no guar­an­tee of ob­tain­ing new lethal-in­jec­tion drugs amid an on­go­ing short­age, and they have to carry out the death sen­tences of eight men con­victed of cap­i­tal mur­der.

Death-row in­mates, their at­tor­neys and civil-lib­er­ties ad­vo­cates have crit­i­cized the fran­tic pace, with former cor­rec­tions of­fi­cials join­ing them in say­ing they worry that it height­ens the odds of a mis­take.

By early Thurs­day evening, Arkansas ap­peared to have given up on four of the planned eight ex­e­cu­tions for this month, in­clud­ing the halted ex­e­cu­tion sched­uled for Thurs­day.

The U.S. Supreme Court on Thurs­day night re­leased or­ders deny­ing re­quests from Arkansas in­mates seek­ing to stay the ex­e­cu­tions. This marked the first time that Jus­tice Neil M. Gor­such, who joined the court this month, voted to cre­ate a con­ser­va­tive ma­jor­ity. In one or­der, the court was split 5 to 4, with Gor­such join­ing the ma­jor­ity in deny­ing the stay and the court’s four lib­eral mem­bers say­ing they would have granted it.

In one or­der, Jus­tice Stephen G. Breyer, who has ques­tioned the “ar­bi­trary” na­ture of the death penalty’s im­ple­men­ta­tion, wrote a dis­sent say­ing that the state’s push to carry out ex­e­cu­tions be­fore its drugs ex­pire “re­in­force that point.”

Arkansas has also faced crit­i­cism from drug com­pa­nies that are un­happy that their prod­ucts may be used in ex­e­cu­tions. Two com­pa­nies filed a brief last week ask­ing a fed­eral judge to block the use of their drugs, which in­clude mi­da­zo­lam, a com­monly used seda­tive that has prompted con­tro­versy when uti­lized in ex­e­cu­tions. State of­fi­cials say their stock of the drug ex­pires April 30.

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