LITTLE ROCK, Ark. (AP) — Arkansas' plan to resume capital punishment after nearly 12 years seemed on its way to being blocked by rulings related to the lethal drugs it wants to use, but in the end arguments over the inmates' mental health led to them being spared.
As state officials prepare to carry out a double execution Thursday ahead of a drug expiration deadline and despite the setback the U.S. Supreme Court delivered late Monday, lawyers for those condemned men look to be taking a different approach: claiming the prisoners are actually innocent.
One of the inmates set to die, Stacey Johnson, says advanced DNA techniques could show that he didn't kill Carol Heath, a 25-year-old mother of two, in 1993 at her DeQueen apartment. Meanwhile, Ledell Lee argued unsuccessfully Tuesday in a Little Rock courtroom that he be given a chance to test blood and hair evidence that could prove he didn't beat 26-year-old Debra Reese to death during a 1993 robbery in Jacksonville. An appeal is possible.
Lawyers are known to make multiple arguments to save their clients' lives in the final hours. The state and its lawyers say the inmates are seeking any legal approach they can find in their efforts to avoid death.
"It is understandable that the inmates are taking every step possible to avoid the sentence of the jury; however, it is the court's responsibility to administer justice and bring conclusion to litigation," Gov. Asa Hutchinson said Tuesday in an emailed statement. "It is that process that we are seeing played out day by day, and we expect it to continue.
"My job as governor is to work with the attorney general to make sure that justice is accomplished and the law of Arkansas is carried out, and that's what we're working every day to accomplish," he said.
The Republican governor had set an aggressive schedule of eight executions by the end of April, when the state's supply midazolam, a key lethal injection drug, expires. If the state had moved ahead with its 11-day execution plan, it would have been the most inmates put to death by any state in such a short period since the U.S. Supreme Court reinstated the death penalty in 1976.
Don Davis and Bruce Ward were supposed to be the first two executed. They won stays from the Arkansas Supreme Court on Monday after lawyers argued their mental health issues were similar enough to those raised in an Alabama case going before the U.S. Supreme Court next week.
The execution of a third inmate, Jason McGehee, had been set for April 27, but a federal judge put it on hold earlier this month, saying McGehee was entitled to a 30-day comment period after the Arkansas Parole Board told the governor that the inmate's clemency request had merit.
That leaves five men set for execution in an eight-day period starting Thursday. It's the quickest timetable in Arkansas since 1926, though state officials say waiting more than two decades to put some of the killers to death could hardly be characterized as swift.
"The families have waited far too long to see justice, and I will continue to make that a priority," Arkansas Attorney General Leslie Rutledge said late Monday.
Lawyers for the inmates set to be executed Thursday are relying primarily on claims the men are innocent. Johnson's attorney, Jeff Rosenzweig, wants a court to order new DNA testing on hair found in the victim's apartment and on clothing that prosecutors found at a rest stop and linked to Johnson.
"That's something we had sought from the state and federal courts and had been denied, and we're making another run at it and showing that there are new techniques that came into effect literally this year that can provide results that can bear on the case," Rosenzweig said.
Rosenzweig also represents two other inmates scheduled to die this month — Jack Jones and Kenneth Williams. He said neither man would raise innocence claims. They instead will rely again on whether the sedative midazolam could present a risk of cruel and unusual punishment in violation of the U.S. Constitution.
In addition to Lee's innocence claim, his lawyers want to know whether their client has an intellectual disability that wasn't properly investigated during his trials.
"Mr. Lee has never had the opportunity to have his case truly investigated, despite serious questions about guilt, and his intellectual disability," Lee's attorney, Cassandra Stubbs, said.
Separate from the inmates' legal challenges, a handful of drug companies are saying they don't want their products used in the executions. Two pharmaceutical companies filed a court brief last week asking a federal judge to block Arkansas from using their drugs, but the judge did not rule on that issue.
The medical supplier McKesson Corp. refiled its lawsuit Tuesday before a judge in Pulaski County. McKesson seeks an order that would force prison officials to return the company's supply of vecuronium bromide, one of three drugs used in the state's lethal injection protocol.
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