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Ark. clears 2 major legal hurdles to execution plan

Lawyers for the state of Arkansas fought on multiple legal fronts Monday to begin a series of double executions before a key sedative used in lethal injections expires


By Andrew DeMillo and Sean Murphy
Associated Press

LITTLE ROCK, Ark. — State and federal courts lifted the two primary obstacles Arkansas faced Monday in its plan to execute eight inmates before the end of April, but the executions of the first two inmates scheduled to die remained in limbo.

The decisions from the 8th U.S. Circuit Court of Appeals and the state Supreme Court were among a flurry of legal actions that threatened to stop a series of lethal injections that, if carried out, would mark the most inmates put to death by a state in such a short period since the U.S. Supreme Court reinstated the death penalty in 1976.

Protesters gather outside the state Capitol building on Friday, April 14, 2017, in Little Rock, Ark., to voice their opposition to Arkansas' seven upcoming executions. (AP Photo/Kelly P. Kissel)
Protesters gather outside the state Capitol building on Friday, April 14, 2017, in Little Rock, Ark., to voice their opposition to Arkansas' seven upcoming executions. (AP Photo/Kelly P. Kissel)

The state Supreme Court had earlier stayed the executions of two men originally scheduled to be put to death Monday night. Separately, a federal appeals court overturned U.S. District Judge Kristine Baker's decision to halt the executions over the use of lethal injection drug midazolam, but the state Supreme Court's rulings remain in place.

"Under our view of the correct legal standard, we cannot agree with the district court that the prisoners have demonstrated a significant possibility of establishing a known and available alternative that would significantly reduce a substantial risk of severe pain," the court said.

A little over an hour later, the state Supreme Court lifted a judge's ruling that had effectively blocked the executions by prohibiting the state from using its supply of vecuronium bromide, one of the other lethal injection drugs. A medical supply company said it was misled by the state and that the drug was sold for medical purposes, not executions.

Earlier Monday afternoon, the state Supreme Court issued a 4-3 decision granting stays for Don Davis and Bruce Ward. The inmates wanted stays of execution while the U.S. Supreme Court takes up a separate case concerning access to independent mental health experts by defendants. The U.S. high court is set to hold oral arguments on April 24.

Three Arkansas justices dissented, with Associate Justice Shawn Womack writing that Ward and Davis "had their day in court, the jury spoke, and decades of appeals have occurred. The families are entitled to closure and finality of the law."

The inmates' attorneys argued that their clients were denied access to independent mental health experts, saying Ward has a lifelong history of severe mental illness and that Davis has an IQ in the range of intellectual disability.

Attorney General Leslie Rutledge's office said she would appeal the state ruling to the U.S. Supreme Court. Rutledge said in a status update with the 8th U.S. Circuit Court of Appeals that she believes the state court's ruling was based on a misinterpretation of federal law.

"This decision was not unanimous and the dissenting opinions reflect the harm the delays cause the families of the victims and it also expresses my frustration in the continued delayed justice," Gov. Asa Hutchinson, who set the execution dates, said in a statement.

The death warrants for Davis and Ward expire at midnight, and it was not clear whether Hutchinson would immediately set new dates for the men.

The Arkansas high court already had issued one stay for Ward after a Jefferson County judge said she didn't have the authority to halt Ward's execution. Ward's attorneys have argued he is a diagnosed schizophrenic with no rational understanding of his impending execution.

The back-and-forth with the courts came as the state seeks to execute eight prisoners before its supply of the sedative midazolam expires at the end of the month. If court proceedings are pushed into May, Arkansas won't be able to carry out the executions with the drugs it has on hand.

The state was still moving forward with plans to conduct the Monday night executions in the event that all stays were lifted, with Davis being served his last meal of fried chicken, rolls, beans, mashed potatoes and strawberry cake.

The eight inmates also asked the U.S. Supreme Court for a stay until the high court rules on their request to reconsider whether to weigh in a state court decision upholding Arkansas' lethal injection law.

It's unclear whether the state may face additional challenges over its execution drugs. McKesson, the supplier that sued Arkansas to try and block the use of the vecuronium bromide, asked to drop its case after Baker's order but has left open the possibility it may refile its lawsuit if executions move forward.

Meanwhile, the Arkansas Supreme Court also barred a state judge who blocked the multiple execution plan from taking up any death penalty related cases after he participated in a protest where he appeared to mimic a death row inmate about to receive a lethal injection. Justices reassigned any death penalty cases from Pulaski County Circuit Court Judge Wendell Griffen, who banned the state from using the vecuronium bromide obtained. After issuing the order, Griffen participated in an anti-death penalty demonstration where he was strapped to a cot. The high court asked a disciplinary panel to consider whether Griffen violated the code of conduct for judges.

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