LITTLE ROCK, Ark. (AP) — Two Arkansas inmates set to die this week in a double execution filed more legal
challenges Wednesday, but so far the pair is hitting roadblocks as a judge weighs a new attempt to
prevent the state from using one of its lethal injection drugs in what would be the state’s first
executions in nearly a dozen years.
Unless a court steps in, Ledell Lee and Stacey Johnson are set for execution Thursday night, and state
prison officials have already moved them from death row to the nearby prison that houses the death
chamber. It’s the second time this week that Arkansas has moved forward with what originally had been a
plan to execute eight men before April 30, when its supply of the drug midazolam expires.
On Monday, the Arkansas Supreme Court blocked the executions of two men set to die that night. A third
man has received a stay from a federal judge over issues with his clemency schedule. Five inmates still
face execution over the next two weeks, and they’ve filed a series of court challenges in hopes of
stopping that.
The latest request, filed Wednesday, asks the U.S. Supreme Court to take the inmates’ case that
challenges the use of midazolam, a sedative used in flawed executions in other states. It’s one of three
drugs Arkansas plans to use in its executions. In 2015, justices upheld Oklahoma’s execution protocol
that used the same drug.
"As pharmaceutical companies become increasingly resistant to allowing their products to be used in
executions, states are likely to continue experimenting with new drugs and drug combinations, and
death-row prisoners may challenge these new protocols as violating their constitutional rights,"
the filing before the U.S. Supreme Court said.
The Arkansas attorney general’s office countered in a court filing Wednesday that the inmates’ request
was a last-minute effort to "manipulate the judicial process."
"As is oft said, justice delayed is justice denied," the filing said. "Here, as a result
of decades of strategic litigation, justice has long been denied to (the inmates’) victims and their
loved ones. Now, the time has come to see that justice done."
Another case that could trip up Arkansas’ plan was filed Tuesday by the medical supplier McKesson Corp.,
which says it sold the drug vecuronium bromide to the Arkansas Department of Correction for inmate
medical care, not executions. The company sued to stop Arkansas from using the drug in the planned
lethal injections, and a hearing over that issue was underway in Little Rock on Wednesday afternoon.
A state prison official testified that he deliberately ordered the drug last year in a way that there
wouldn’t be a paper trail, relying on phone calls and text messages. Arkansas Department of Correction
Deputy Director Rory Griffin said he didn’t keep records of the texts, but McKesson salesman Tim Jenkins
did. In text messages from Jenkins’ phone, which came up at Wednesday’s court hearing, there is no
mention that the drug would be used in executions.
Lee and Johnson both faced setbacks Tuesday in their quest to get more DNA tests on evidence in hopes of
proving their innocence. Lee claims tests of blood and hair evidence that could prove he didn’t beat
26-year-old Debra Reese to death during a 1993 robbery in Jacksonville. Johnson claims that advanced DNA
techniques could show that he didn’t kill Carol Heath, a 25-year-old mother of two, in 1993 at her
southwest Arkansas apartment.
Lawyers are known to make multiple arguments to save their clients’ lives in the final hours before
execution. The state and its lawyers say the inmates are seeking any legal approach they can find 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."
___
Follow Kelly P. Kissel at www.twitter.com/kisselAP and Jill Bleed at www.twitter.com/jzbleed