Thursday, April 20, 2017

The Ledell Lee execution thread

Posted By and on Thu, Apr 20, 2017 at 6:08 PM

click to enlarge SOLOMON GRAVES: The Arkansas Department of Correction spokesman updates media at Cummins Prison Thursday night. - BRIAN CHISON
  • Brian Chison
  • SOLOMON GRAVES: The Arkansas Department of Correction spokesman updates media at Cummins Prison Thursday night.

Arkansas Times contributor Jacob Rosenberg is at the Cummins Unit in Grady filing dispatches tonight in advance of the expected execution of Ledell Lee, who was sentenced to death for the Feb. 9, 1993, murder of Debra Reese, 26, who was beaten to death in the bedroom of her home in Jacksonville. Investigators determined she was strangled and struck at least 36 times with a "tire thumper," a club used by truckers to check tire pressure. Her husband, a truck driver, had given her the tire thumper for protection while he was on the road. Lee says he is innocent of the crime.

5:30 p.m.
: Lee's last meal was communion at 4 p.m., according to Solomon Graves, Arkansas Department of Correction spokesman.

6 p.m.: John Moritz of the Arkansas Democrat-Gazette, Sean Murphy of the Associated Press and Marine Glisovic of KATV, Channel 7 will be the media witnesses. The state has relented on its inane policy to not allow reporters who view the execution to bring in notepads and pens. It will now provide the three reporters with pen and paper.

Murphy, who works for the AP in Oklahoma, witnessed the botched execution of Clayton Lockett in that state in 2014.

6:16 p.m.: JR Davis, spokesman for Governor Hutchinson, says the governor is at the Capitol. "Lines of communication are absolutely open," Davis said. The governor is "prepared from all sides."

Media witnesses have left for the execution viewing room.

6:25 p.m. Lee has three available long shot ways he might avoid being executed:

Late this afternoon, the Innocence Project and the ACLU joined in filing an emergency civil rights lawsuit in federal court. The attorney general then filed a response.

An emergency request for a stay is still before the U.S. Supreme Court.

The governor could grant executive clemency.

6:25 p.m.: Graves takes his place next to a phone that goes to the execution chamber.

click to enlarge BRIAN CHILSON
  • Brian Chilson
From earlier:

6:42 p.m.: If Lee's execution goes through it will be the first time the state has ever used the controversial midazolam sedative in its three-drug protocol. The next drug is vecuronium bromide, a paralytic. The third is potassium chloride, which causes a heart attack. This procedure, critics have worried, could leave a prisoner conscious during the procedure. An Arkansas Department of Correction official confirmed that it will perform consciousness checks five minutes after the midazolam is administered to ensure the inmate is insensate as protocol dictates. (ADC has failed to reveal what constitutes a consciousness check). AP Reporter Sean Murphy said that he will be counting minutes to ensure that five minutes have passed and that consciousness checks occur.

6:59 p.m.: The 8th Circuit Court of Appeals has issued a stay of the execution of Lee until 8:15 p.m., according to ADC's Graves. Not the U.S. Supreme Court as we originally reported.

7:25 p.m.: The U.S. Supreme Court has denied inmates motions for a stay and refused to grant certiorari in another case.

In the main case, the appeal of the 8th Circuit's reversal of U.S. District Judge Kristine Baker's preliminary injunction, the court split 5-4. The court's four liberal justices would have granted a stay. Justice Sonia Sotomayor wrote a dissent. As did Justice Stephen Breyer.

I believe this is Justice Neil Gorsuch's first vote. Had Senate Republicans not blocked the confirmation of Merrick Garland or had Clinton beat Trump, would the decision have been different?

From Breyer's dissent:

Arkansas set out to execute eight people over the course of 11 days. Why these eight? Why now? The apparent reason has nothing to do with the heinousness of their crimes or with the presence (or absence) of mitigating behavior. It has nothing to do with their mental state. It has nothing to do with the need for speedy punishment. Four have been on death row for over 20 years. All have been housed in solitary confinement for at least 10 years. Apparently the reason the State decided to proceed with these eight executions is that the ‘use by’ date of the State’s execution drug is about to expire.


I have previously noted the arbitrariness with which executions are carried out in this country. ... And I have pointed out how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a “rule of law.”

From Justice Sotomayor's dissent:

After a four-day evidentiary hearing at which seventeen witnesses testified and volumes of evidence were introduced, the District Court issued an exhaustive 101-page opinion enjoining petitioners’ executions. The court found that Arkansas’ current lethal-injection protocol posed a substantial risk of severe pain and that petitioners had identified available alternative methods of execution. The Eighth Circuit reversed these findings in a six-page opinion.

As Judge Kelly noted persuasively in dissent, the Eighth Circuit erred at both steps of the analysis required by Glossip v. Gross ... First, it failed to defer to the District Court’s extensive factual findings andinstead substituted its own. ... The Court of Appeals thus erroneously swept aside the District Court’s well-supported finding that midazolam creates a substantial risk of severe pain. Second, it imposed a restrictive view of what qualifies as an “available”alternative under Glossip. I continue to harbor significant doubts about the wisdom of imposing the perverse requirement that inmates offer alternative methods for their own executions.  ... But given the life or death consequences, the Court, having imposed this requirement, should provide clarification and guidance when the Circuits are divided as to its meaning. 

Here is the denial of the stay pending consideration of a rehearing of the Johnson v Kelley case. Three of the Supreme Court's liberal justices, Stephen Breyer, Elena Kagan and Sonia Sotomayor, dissented, but not Ruth Bader Ginsburg.

Here is the denial of cert in the Johnson v. Kelley case. Breyer dissented.

7:42 p.m.:  Graves says that Lee "was never moved into the [execution] chamber prior to the issuance of the stay." Earlier Graves said he is "most likely with his attorney and, if he selected one, a spiritual advisor."

From earlier, Buzzfeed's Supreme Court correspondent Chris Geidner says there are three new stay requests at the U.S. Supreme Court for Ledell Lee.

Two of the motions are from the Innocence Project and the ACLU and concern DNA testing. Another one is from all of the prisoners scheduled to be executed and makes a due process claim related to the compressed clemency schedule.

8:15 p.m. In an order from Justice Samuel Alito, the execution is now stayed until 8:30 p.m. or further word from Alito. Here it is.
8:25 p.m.: The 8th Circuit has extended its stay until 9:15 p.m.

8:35 p.m.: JR Davis, spokesman for Governor Hutchinson, says there is no concern of guilt in these cases.

click to enlarge johnson.jpg

Outside the prison, Judy Robinson-Johnson, wife of inmate Stacy Johnson, who was scheduled to be executed tonight before the Arkansas Supreme Court granted a stay to allow for new DNA testing. She tells David Koon she believes Johnson is innocent. She said if she could talk to Governor Hutchinson, she would try to appeal to his heart.

8:40 p.m.: A reminder that Arkansas planned, originally, to do four double executions. On Monday night with just one and tonight with just one, legal challenges have pushed them back and complicated the process. When correction officer' and lawyers discuss the "stress" of an execution, they are not just referring to the unbelievable burden of killing someone. They also are talking about what we're seeing now: a complex legal process that means Lee and the people set to kill him are waiting, wondering what will happen next. Still to come are the parts that so many have been worried about, the administration of IV in a stressful situation and the use of the controversial sedative midazolam.

Jacob Rosenberg wrote about the stress of executions and the concerns about midazolam in a cover story for the Arkansas Times.

But ADC Director Wendy Kelley believes that the execution will go smoothly, even with stress. From our coverage of her testimony in federal court:

Kelley said that Arkansas’s planned use of an ultrasound machine in placing the IV would ensure the state does not make the same mistake.... “What happened to Clayton Lockett can’t happen here,” she said.
Lockett was the death row inmate in Oklahoma whose execution was botched horribly.

8:51 p.m.: The 8th Circuit denies an appeal for stay. Judge Kelly, the lone Democratic appointee on the court, "reluctantly" concurs.

There are still appeals before the 8th Circuit in addition to the three noted above before the U.S. Supreme Court. Follow Chris Geidner of Buzzfeed on Twitter to stay on top of legal filings.

The 8th Circuit has denied one of the cases involving DNA testing. And another one.

From earlier, outside the prison:

click to enlarge Lynn Jones - DAVID KOON
  • David Koon
  • Lynn Jones
Lynn Jones, sister of Jack Jones, who is scheduled to be executed on Monday, shows her tattoo. It's a copy of how Jack Jones signs his letters to her. She tells David Koon there's no doubt her brother is guilty, but says execution is "barbaric." She has asked ADC to witness the execution, but officials won't allow it.

9:15 p.m.: Key clarification from Buzzfeed's Geidner: Alito's stay was 8:30 p.m. or word from the court, whichever was LATER. In other words, now that 8:30 p.m. has passed, the state is waiting for the court to tell it to move forward.

Again, no matter how you feel about the death penalty, there is a significant split among U.S. Court of Appeals on how to interpret the U.S. Supreme Court on execution procedures that involve midazolam, a drug that many experts say has lead to several botched executions. So in Ohio, a similarly situated death row inmate's execution was put off, while Arkansas prepares to execute Lee. It's easy to imagine a different scenario with a Justice Merrick Garland or Justice "whoever Hillary picked." Tonight was one of the first — if not the first — votes from Justice Gorsuch.

The Supreme Court will eventually have to sort out the splits, but it may be too late for Lee.

9:45 p.m.: Considering how difficult carrying out one execution has been, Jacob Rosenberg asked J.R. Davis, the governor's spokesman, about the stress of a double execution on Monday. Davis said the governor is "completely confident in Director Kelley and her staff." He said the Hutchinson administration was not surprised by the flurry of appeals.

Earlier tonight, former Arkansas death row inmate Damien Echols posted an article on Medium:

Keep in mind that in the history of the state of Arkansas, no one on death row has ever been exonerated. Local politicians maintain they have never made a mistake, that the system is infallible, and that they have never sentenced an innocent man to die. I know this is false, because for 18 years I sat on Arkansas’ death row and waited on the state to murder me for something I didn’t do. Even after DNA testing was completed in my case, which excluded me from the crime scene, I sat on death row for two more years as the state wrestled endlessly to cover it up and kill me.
10:25 p.m.: David Koon shares a shot of anti-death penalty advocates holding vigil outside the Governor's Mansion.

click to enlarge govmansion.jpg

10:56 p.m.: The stay continues. But, the ADC's Solomon Graves confirmed that he would put media witnesses in place before midnight (he would not specify the time) to prepare for a last minute ruling by SCOTUS. This would ensure that Arkansas could execute Lee before the end of his death warrant, which expires at midnight. On Monday night the same occurred, when a stay was holding the executions before a late Monday night decision from the U.S. Supreme Court.

11:06 p.m.: Kelly Kissel of the AP tweets: "question that remained unanswered from Monday night: When does the execution begin? When drugs flow? At tie-down? 1 hour left."

11:25 p.m. The U.S. Supreme Court has denied the five remaining appeals it was considering and lifted the stay of execution Ledell Lee.

11:33 p.m. Solomon Graves just announced that procedure that the ADC would "begin the process of carrying out the sentence."

11:44 p.m.: Drugs were administered to Lee by lethal injection, according to an ADC spokesman.

11:56 p.m.: He was pronounced dead.

12:05 a.m.: Attorney General Leslie Rutledge issues a statement:

“Tonight the lawful sentence of a jury which has been upheld by the courts through decades of challenges has been carried out. The family of the late Debra Reese, who was brutally murdered with a tire thumper after being targeted because she was home alone, has waited more than 24 years to see justice done. I pray this lawful execution helps bring closure for the Reese family.”
12:10 a.m.: A statement from the Innocence Project, which assisted Lee with 11th hour appeals:

Ledell Lee proclaimed his innocence from the day of his arrest until the night of his execution twenty-four years later. During that time, hundreds of innocent people have been freed from our nation’s prisons and death rows by DNA evidence. It is hard to understand how the same government that uses DNA to prosecute crimes every day could execute Mr. Lee without allowing him a simple DNA test.

Arkansas’s decision to rush through the execution of Mr. Lee just because its supply of lethal drugs are expiring at the end of the month denied him the opportunity to conduct DNA testing that could have proven his innocence. While reasonable people can disagree on whether death is an appropriate form of punishment, no one should be executed when there is a possibility that person is innocent.

In a dissenting opinion denying Lee a stay issued today, Arkansas Supreme Court Judge Josephine Linker Hart made a powerful argument for why DNA testing was in the interest of justice. Justice Hart characterized Lee’s claim for DNA testing of hairs the state claimed linked Lee to the crime as a “modest request,” noting that the hair evidence had been used against him at trial and “tilted in the State’s favor a very weak case based entirely on circumstantial evidence.”

Judge Hart also emphasized the unfairness and arbitrariness of the Arkansas court’s grant of a stay to Stacey Johnson for DNA testing while denying one to Lee, adding, “I am at a loss to explain this Court’s dissimilar treatment of similarly situated litigants.” Judge Hart concluded by stating, “The court’s error in denying the motion for stay will not be capable of correction.”
Media witnesses say that Lee was asked twice for last words and he remained silent.

The Associated Press' Sean Murphy, who witnessed the botched execution of Clayton Lockett, said he saw nothing abnormal in the process, including the consciousness check.

Murphy said there were at least 12 citizen witnesses, and they showed no outward emotion.

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