Monday, April 17, 2017

Death Row inmates argue to keep stay of execution in place; urge 8th Circuit not to 'rush' analysis

Posted By on Mon, Apr 17, 2017 at 5:53 AM

click to enlarge SCHEDULED FOR KILLING: Death Row inmates in current appeal.  Top, from left: Don Davis, Stacey Johnson, Jack Jones and Ledell Lee; bottom, from left: Jason McGehee, Bruce Ward, Kenneth Williams and Marcel Williams.
  • SCHEDULED FOR KILLING: Death Row inmates in current appeal. Top, from left: Don Davis, Stacey Johnson, Jack Jones and Ledell Lee; bottom, from left: Jason McGehee, Bruce Ward, Kenneth Williams and Marcel Williams.

Early this morning, attorneys for nine Death Row inmates filed an argument with the 8th United States Circuit Court of Appeals contesting the state's effort to override Judge Kristine Baker's order Saturday that halted executions scheduled this month.

The inmates said the 8th Circuit should not decide in two days a matter on which Baker had heard 17 witnesses and included a transcript of their testimony of 1,300 pages and 90 exhibits. The order included hundreds of factual findings and multiple conclusions of law, they said.

"At this stage, a more thorough consideration of plaintiffs' claims could hardly be imagined."

The state has argued that Baker didn't adequately consider that her order would put a stop to scheduled executions that carry out lawful sentences.  Baker found merit in inmates' arguments about full access to legal counsel during executions and to the potential for cruel and unusual punishment from use of the sedative midazolam. It is used along with a paralytic drug and a killing drug, in the lethal injection process. Arkansas has never used the drug combination before.

The inmates said the state "misstates the standard of review, selectively represents the procedural history and ignores vast swathes of evidence."

The inmates asked that the appeals court deny the state's request "for a rushed analysis of this complex record and instead give calm consideration to these grave issues after full briefing and argument."

Here's the inmates' brief.

Eight inmates were scheduled to be killed by order of Gov. Asa Hutchinson — two a day between today and April 27. A ninth inmate who is not currently scheduled to be killed joined the suit. Since then, courts have stayed two executions — of Bruce Ward, who was scheduled to die today but who is mentally incompetent, and Jason McGehee, who's been recommended for clemency. The state is trying to get Ward's stay lifted. It has apparently acceded to a court finding that McGehee's killing would violate state law on a required waiting period after a recommendation for clemency. The clemency process was shortened so as to meet the governor's compressed execution schedule. It was hurried to get the killing done before a supply of one drug, the controversial sedative midazolam, expires at the end of this month.

NOTED: Judge Wendell Griffen's order halting use of the state's supply of midazolam because the distributor said it was deceitfully obtained remains in effect. However, McKesson, the distributor, has asked that its suit be dismissed on account of Judge Baker's broader temporary restraining order. That request is expected to be granted today. McKesson has said it wants to reserve the right to refile the suit. It has also asked for its midazolam back, something the state has so far refused to do.

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