ST. LOUIS (AP) — A Missouri inmate is asking the U.S. Supreme Court to spare his life, claiming the execution drug could trigger severe pain and convulsions due to the remnants of a brain tumor and the damage caused by surgery to remove it.
Ernest Lee Johnson, 55, is scheduled to die Tuesday evening for using a claw hammer to kill three convenience store workers in central Missouri in 1994.
A district court judge and a panel of the 8th U.S. Circuit Court of Appeals last week refused to halt the execution over the medical concerns.
A portion of the benign tumor was removed in 2008, but some of it remains. The operation also required removal of about 20 percent of Johnson's brain tissue, his attorney, Jeremy Weis, said Monday.
Missouri's execution drug is a form of pentobarbital believed to be manufactured by a compounding pharmacy — the state won't say where it gets it. Weis said the drug "is likely to cause seizures" for Johnson "given his history and the brain tumor."
Weis cites a medical review by Dr. Joel Zivot, who examined MRI images of Johnson's brain and found "significant brain damage and defects that resulted from the tumor and the surgical procedure," according to court filings.
"Mr. Johnson faces a significant medical risk for a serious seizure as the direct result of the combination of the Missouri lethal injection protocol and Mr. Johnson's permanent and disabling neurologic disease," Zivot wrote.
The Missouri attorney general's office declined comment. But in court filings, the state dismissed questions about the danger posed by the execution drug, noting that Missouri has carried out "rapid and painless" executions since it went to the one-drug method in November 2013.
Other death row inmates have filed similar arguments claiming medical conditions should preclude them from execution, with mixed success.
Last year, the U.S. Supreme Court stepped in hours before Russell Bucklew was scheduled to die in Missouri for a 1996 killing, after Bucklew argued that pain and suffering were possible due to a rare congenital condition that causes weakened and malformed blood vessels as well as tumors in his nose and throat. The case was sent back, and is still pending in U.S. District Court in St. Louis.
Missouri executed 74-year-old Cecil Clayton in March after the U.S. Supreme Court rejected claims that Clayton had diminished mental capacity due to a 1970s sawmill accident that cost him part of his brain's frontal lobe.
In 2007, Oklahoma executed two-time killer Jimmy Dale Bland, even though doctors had said he would likely die of cancer within six months anyway. Death penalty opponents called the execution pointless, but prosecutors said Bland's health was no reason for mercy.
Johnson's death sentence for the Missouri convenience store killings has been overturned twice over his mental competency. It was first set aside in 2001 after the U.S. Supreme Court ruled that executing the mentally impaired was unconstitutionally cruel, and again in 2003 when the Missouri Supreme Court cited evidence that Johnson was mentally disabled. In both cases, the death penalty was restored.
Weis has filed a new appeal with the state Supreme Court on the issue of mental competency, claiming Johnson has an IQ of 67.
Johnson was a frequent customer at a Casey's General Store in Columbia. On Feb. 12, 1994, store workers Mary Bratcher, 46, Mable Scruggs, 57, and Fred Jones, 58, were closing for the night when Johnson arrived. He robbed the store seeking money to buy drugs, beat all three workers to death with a claw hammer and hid their bodies in a cooler.
Police arrested Johnson after finding a bank bag, stolen money and store receipts at his home.