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Another death row inmate gets stay as Arkansas fights to carry out any executions at all

by Carter Sherman
Apr 19 2017, 9:22pm

One of the eight Arkansas inmates initially scheduled to die this week received a last-minute chance to prove his innocence through DNA testing Wednesday — just a few minutes before another court temporarily halted the executions of the remaining men.

Arkansas had planned to execute eight men in just 11 days, but a series of legal challenges prevented the state from starting on schedule Monday — including three stays of execution, one recommendation of clemency, and two temporary restraining orders preventing Arkansas from using one of the drugs in its lethal injection cocktail.

Late Friday night, Pulaski County Circuit Judge Wendell Griffen issued the first ruling after drug distributor McKesson Medical-Surgical, Inc. filed a complaint alleging it would never have sold Arkansas vercuronium bromide — the drug it plans to use to paralyze inmates before execution — if it had known it was to be used in executions. But the ruling was short-lived; Arkansas asked the state supreme court to reconsider Griffen’s order, citing his personal opposition to the death penalty, and the supreme court agreed, vacating the order and removing the judge from the case.

After a federal court in a separate case ruled Saturday that Arkansas could not carry out its execution spree, citing concerns over midazolam, a different drug used in the lethal injection procedure. McKesson withdrew its complaint.

Then, on Monday, the Court of Appeals for the 8th U.S. Circuit overturned that federal ruling, prompting McKesson to refile its complaint Tuesday. Pulaski County Circuit Judge Alice Gray issued the second temporary restraining order Wednesday.

Stacey Johnson, the inmate given a stay Wednesday, also argued that more advanced DNA testing techniques would lead him to be able to prove his innocence in a 1993 murder case. The Arkansas Supreme Court ruled that Johnson should get another chance to do so, and ordered a lower court to set a hearing to address his claims.

Johnson joins two other inmates whose executions, initially set for Monday, were also stayed. Arkansas appealed those stays to the U.S. Supreme Court earlier this week, but the Justice Samuel Alito denied the application to hear the case. The inmates’ lawyers also appealed the midazolam ruling to the Supreme Court earlier this week, and currently are awaiting a response.

In early April, a federal judge granted one of the inmates slated for execution a stay after the state’s parole board voted to recommend him for clemency. Another inmate, Ledell Lee, is still set to be put to death Thursday. He is also seeking a stay in a separate case.

CORRECTION (April 27, 11:37 p.m.): An earlier version of this article misstated the role of the plaintiff seeking the temporary restraining order. It was sought by a drug distributor, not a drug manufacturer.