Arkansas Executions: Federal Judge Halts Scheduled Executions, State Appeals
Crowds gather at a rally opposing Arkansas' upcoming executions, which are set to begin next week, on the front steps of the Capitolin Little Rock, Ark.on Friday, April 14, 2017.Stephen B. Thornton / The Arkansas Democrat-Gazette via AP
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LITTLE ROCK, Arkansas — Attorneys and activists this weekend are in a last-minute scramble to get courts to formally block or allow Arkansas' historic execution pace that was originally set to kill eight men in just 10 days.
A federal judge threw the process into turmoil early Saturday after agreeing to halt the scheduled executions, putting the Arkansas' capital punishment plans in jeopardy for the foreseeable future. The state attorney general's office is appealing.
The latest moves follow Friday's hectic events capped by an anti-death penalty rally, a decision to put one condemned man's execution on hold and a judge issuing a temporary restraining order on one of the drugs in the state's lethal injection cocktail.
The latest decision Saturday by a federal judge in Arkansas to halt the planned executions gives a temporary reprieve to the nine death row inmates who are challenging the method of execution.
Arkansas has received attention for not only the pace it wants to conduct those executions, but also the method it wants to use. The state plans to employ a three-drug lethal-injection cocktail: midazolam to render the inmate unconscious, vercuronium bromide to paralyze and stop their breathing, and then finally potassium chloride to stop the heart.
But it is the defense's claim that midazolam, which is not an anesthetic, doesn't always work — allowing the patient to wake up in incredible pain due to the other drugs coursing through their veins. That concern has prompted this temporary halt to the executions.
"Today's ruling is legally sound and reasonable," said Assistant Federal Public Defender John Williams, who is defending three of the original eight inmates.
"We are calling on state officials to accept the federal court's decision, cancel the frantic execution schedule, and propose a legal and humane method to carry out its executions," he added.
The 101-page ruling made by Federal Judge Kristine Baker casts judgment on whether the use of one of the drugs can cause cruel and unusual punishment. Inmates have woken up during the procedure numerous times when midazolam was used, and lawyers for the defense cited incidents in Arizona, Alabama and Oklahoma in their case.
"The threat of irreparable harm to the plaintiffs is significant: if midazolam does not adequately anesthetize plaintiffs, or if their executions are 'botched,' they will suffer severe pain before they die," Baker wrote.
Arkansas Attorney General Leslie Rutledge's office confirmed Saturday that she filed an appeal of the ruling to the 8th Circuit — a court that has allowed executions to proceed in the recent past.
Arkansas death row defense attorney Jeff Rosenzweig told NBC News that he anticipates whichever side loses that appeal would then ask the Supreme Court to take up the case.
“If it goes to the U.S. Supreme Court, it will get down to the wire on Monday,” Rosenzweig said, referring to the first slate of executions scheduled for later that night.
Gov. Asa Hutchinson said that the decision should come as no surprise, but emphasized the need for the appeals despite the emotional weight on those affected by the death row cases.
"I understand how difficult this is on the victims' families, and my heart goes out to them as they once again deal with the continued court review; however, the last minute court reviews are all part of the difficult process of death penalty cases," Hutchinson said, noting that he would meet with the Department of Corrections and Rutledge's office Monday to plan the state's next steps.
"I expect both the Supreme Court of Arkansas and the 8th Circuit Court of Appeals to review the decisions quickly, and I have confidence in the Attorney General and her team to expedite the reviews," he added.
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Circuit Judge Wendell Griffen on Friday evening placed a restraining order on the second drug in the three-drug lethal injection protocol that the state of Arkansas plans to use.
While much attention has been given to the controversial first drug — midazolam, which is supposed to render the inmate comatose — it is the vercuronium bromide, used to paralyze and stop the inmate's breathing, that Griffen has blocked.
The judge ruled based on a complaint filed by McKesson Medical-Surgical, a medical supply company that claims the Arkansas Department of Corrections duped them into providing the paralytic, stating that they believed they were providing the drug for health reasons.
On Thursday, Arkansas Director of Corrections Wendy Kelly testified that drug manufacturers and distributors had asked her to return the drugs she had received from them because they did not want to be associated with executions. She said that she had declined, but had informed all of them how she planned to use them.
In his opinion, Griffen wrote the restraining order would be put in place based on the merits of the case — indicating he believed McKesson would likely win their lawsuit demanding the drug back.
But the judge may have put his own ruling in jeopardy on Friday in an act that captured quite a bit of attention in Little Rock.
After a rally disbanded outside the Arkansas State Capitol, Judge Griffen was seen joining a protest of the death penalty outside the governor's mansion.
Only slightly before his restraining order was filed electronically, Griffen — dressed as an inmate — was photographed on a cot. He was attempting to illustrate the final moments of a condemned inmate.
"As a public opponent of capital punishment, Judge Griffen should have recused himself from this case," said Judd Deere, communications director for Arkansas Attorney General Leslie Rutledge, who said her office would file an emergency request with the Arkansas Supreme Court "to vacate the order as soon as possible."
The attorney general's office declined to comment on how this might affect the schedule, but on Saturday morning they filed an emergency petition to dismiss the restraining order and to have Griffen removed from the case.
Griffen was not immediately reachable for comment.
Meanwhile, in a separate development, defense attorneys found some success on Friday as the attorney general's office announced that one of the condemned men's execution was halted — the second such stay of the original group eight men condemned to die in the short span.
A few hours after hundreds of people gathered on the steps of the Arkansas State Capitol on Friday to protests the killings, the Arkansas Supreme Court stayed the execution of 61-year-old death row inmate Bruce Ward — three days before he was scheduled to die.
On death row for 26 years, Ward was originally convicted of strangling an 18-year-old in the bathroom of a Little Rock convenience store and would have been the first one to be injected with the lethal drugs on Monday at 7 p.m. Don Davis, who is believed to have an IQ of 70, is now the only one to be put to death on Monday.
Ward's lawyer filed a challenge last month that said his client was not mentally competent enough to be executed.
“Mr. Ward’s severe and life long schizophrenia and delusions, such as seeing demon dogs at the foot of his bed, have left him incompetent for execution under the constitutional standard,” his lawyer Scott Braden said in a statement released Friday. “He has no rational understanding of the punishment he is slated to suffer or the reason why he is to suffer it.”
Though Ward may not be executed Monday, as scheduled, his sentence hasn't been overturned.
Rutledge’s office responded by putting out a reminder that Ward was convicted of capital murder in 1990 and that his conviction had been upheld by the State Supreme Court — though it did not mention that his death sentence had been overturned by that same court twice.
“The Court granted a stay of Ward's scheduled execution today but offered no reason for doing so,” said Deere. “Attorney General Rutledge is evaluating options on how to proceed."
If the rally earlier in the day was any indication, quite a few Arkansans will be pleased with the two major court decisions.
On the steps of the Arkansas State Capitol members of the clergy, lawmakers and activists shared their strong disapproval of Gov. Asa Hutchinson’s fast-paced schedule. While hundreds of attendees cheered for each speaker, the crowd roared especially loud for two people who stepped up to the microphone: former Arkansas death row inmate Damien Echols and actor Johnny Depp.
Organized by the Arkansas Coalition to End the Death Penalty and led by the group’s director Furonda Brasfield, the rally’s speakers referenced religion, human integrity and forgiveness as the reasons to oppose the death penalty.
“This rally today was important because we needed [Gov. Hutchinson] to hear that people all over Arkansas, all over the country, all over the world are opposed to this execution schedule specifically, and generally are opposed to the [death penalty],” Brasfield told NBC News.
Brasfield is the one who asked Echols to come to the rally, a tall emotional order for the 18-year veteran of Arkansas’s death row. Echols previously told NBC News that he carried a huge amount of anxiety over returning to Arkansas since he was released from prison in 2011.
But Echols spoke eloquently and earned the loudest cheers of the day when he spoke — with Depp standing a few feet to his right. The two met in the 1990s after Echols became the subject of a series of HBO documentaries that chronicled the problems of his case and the story behind the murders, with the movie star becoming one of his most prominent advocates.
Speaking at a wooden podium and surrounded by cameras less than 50 feet from the golden doors of the state capitol, Echols shared his story of death row, his horror at the pace of executions, and the hardship of returning to a state that tried to kill him. Despite his voice cracking with emotion a couple times, he emphasized two things: that his fellow inmates on death row saved his life and that it was up to the voters of Arkansas to decide the fate of the still condemned.
"They may very well win this battle," Echols warned, referring to the state and its attempts to execute members of death row next week. "They may go through with it, but you can turn their victory into action."
Phil McCausland is an NBC News reporter focused on the rural-urban divide.