The Associated PressIn this Monday evening, April 17, 2017 photo, the sun sets behind clouds over an Arkansas State Police command post outside the Varner Unit of the Arkansas Department of Correction near Varner, Ark. As state officials prepare to carry out a double execution Thursday ahead of a drug expiration deadline and despite the setback the U.S. Supreme Court delivered late Monday, lawyers for those condemned men look to be taking a different approach: claiming the prisoners are actually innocent. (Stephen B. Thornton/The Arkansas Democrat-Gazette via AP)
Arkansas suffered two more setbacks in its unprecedented bid to carry out eight executions this month with the state’s highest court granting a reprieve to an inmate scheduled to die Thursday and a county court saying the state can’t use one of its lethal injection drugs in any executions .
While both of Wednesday’s rulings could be overturned, Arkansas now faces an uphill battle to execute any inmates before the end of April, when another of its drugs expires.
The state originally set eight executions to occur over an 11-day period in April, which would have been the most by a state in such a compressed period since the U.S. Supreme Court reinstated the death penalty in 1976. But Arkansas has faced a wave of legal challenges, and the latest ruling from Pulaski County Circuit Judge Alice Gray over the drug vecuronium bromide upends the entire schedule.
Gray sided with McKesson Corp., which had argued that it sold Arkansas the drug for medical use, not executions, and that it would suffer harm financially and to its reputation if the executions were carried out.
“Irreparable harm will result. Harm that could not be addressed by (monetary) damages,” Gray said in a ruling from the bench.
Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said the state will appeal Gray’s ruling.
Four of the eight inmates have received stays on unrelated issues. If Gray’s ruling is vacated by the Arkansas Supreme Court or the state obtains a different supply of vecuronium bromide, the executions of four other inmates who haven’t received individual stays could potentially go forward.
Arkansas Department of Correction spokesman Solomon Graves said Wednesday night that the state had not obtained a new supply of vecuronium bromide, which is the second of three drugs used in Arkansas’ lethal injection protocol.
Gray’s ruling mirrors one last week from Pulaski County Circuit Judge Wendell Griffen, who also blocked Arkansas from using the vecuronium bromide. But the Arkansas Supreme Court vacated Griffen’s ruling days after he participated in an anti-death penalty rally and reassigned some of his cases. In that order, the state Supreme Court did not elaborate on its reasoning.
Meanwhile, the Arkansas Supreme Court on Wednesday granted a stay of execution to inmate Stacey Johnson, who had been set to die Thursday. Johnson’s attorneys requested additional DNA testing on evidence that they say could prove his innocence in the 1993 rape and killing of Carol Heath. The Innocence Project filed the appeal along with Johnson’s attorney.
Another inmate, Ledell Lee, was scheduled for execution Thursday night and has a similar request pending for more DNA testing, though a Pulaski County judge ruled against him Tuesday.
“Because (Lee), like Stacey Johnson, has never gotten a hearing on his DNA petition, and has maintained his innocence for over two decades, we are hopeful that the Arkansas Supreme Court will also grant him a stay and give him a hearing on the DNA evidence,” said the Innocence Project’s Nina Morrison, who is one of Lee’s attorneys.
In its 4-3 ruling in the Johnson case, the state’s highest court followed the same split it did on Monday, when it halted two other executions involving different inmates, Bruce Ward and Don Davis.
“Today, our court gives uncertainty to any case ever truly being final in the Arkansas Supreme Court,” Justice Rhonda Wood wrote in a dissenting opinion Wednesday.
Deere, the attorney general’s spokesman, said the state was reviewing its options regarding Johnson’s case. The state can ask the Arkansas Supreme Court to reconsider its decision or appeal to the U.S. Supreme Court, which on Monday opted not to vacate a separate stay involving inmate Davis.
In the drug case, 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.
Associated Press writer Andrew DeMillo contributed to this report.
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