Arkansas prepares to carry out first execution since 2005

LITTLE ROCK, Ark. -- Arkansas was poised Thursday to conduct its first execution since 2005 after officials scrapped the third of eight lethal injections that had been planned before the end of the month amid court challenges.

The U.S. Supreme Court by a 5-4 vote rejected appeals that would have halted Ledell Lee’s execution, but more were expected Thursday night.

A ruling from the state Supreme Court allowing officials to use a lethal injection drug that a supplier says was obtained by misleading the company cleared the way for Arkansas to proceed to execute Lee on Thursday night, although he still had requests for stays pending with a federal appeals court and the U.S. Supreme Court. A federal appeals court delayed Lee’s execution until 8:15 p.m. central time, to give them time to review his case.

Represented by the Innocence Project and the ACLU, Lee’s attorney filed the lawsuit once the Arkansas Supreme Court denied an emergency stay motion, CBS affiliate WTHV reports. The civil rights lawsuit is to allow more time for new DNA testing to be done in his case.

“It is inappropriate for the state to rush to execute before a defendant’s innocence claim can be properly examined,” said Nina Morrison, a senior staff attorney with the Innocence Project. “All we are asking for is a hearing on Mr. Lee’s claim that modern DNA testing can prove his innocence.”

Arkansas dropped plans to execute a second inmate, Stacey Johnson, on the same day after the state Supreme Court said it wouldn’t reconsider his stay, which was issued so Johnson could seek more DNA tests in hopes of proving his innocence.

The state originally set four double executions over an 11-day period in April. The eight executions would have been the most by a state in such a compressed period since the U.S. Supreme Court reinstated the death penalty in 1976. The state says the executions need to be carried out before its supply of one lethal injection drug, midazolam, expires on April 30. Three executions were canceled because of court decisions, and legal rulings have put at least one of the other five in doubt.

Lee was set to be executed for the 1993 death of his neighbor Debra Reese, who was struck 36 times with a tire tool her husband had given her for protection. A prison spokesman said Lee on Thursday declined a last meal and opted instead to receive communion.

Justices on Thursday reversed an order by Pulaski County Circuit Judge Alice Gray that halted the use of vecuronium bromide, one of three drugs used in the state’s lethal injection process, in any execution. McKesson Corp. says the state obtained the drug under false pretenses and that it wants nothing to do with executions.

McKesson said it was disappointed in the court’s ruling.

“We believe we have done all we can do at this time to recover our product,” the company said in a statement.

Justices also denied an attempt by makers of midazolam and potassium chloride -- the two other drugs in Arkansas’ execution plan -- to intervene in McKesson’s fight over the vecuronium bromide. The pharmaceutical companies say there is a public health risk if their drugs are diverted for use in executions, and that the state’s possession of the drugs violates rules within their distribution networks.

The legal maneuvers frustrated Republican Gov. Asa Hutchinson, who had set the execution schedule less than two months ago. The state’s elected prosecutors also criticized the roadblocks to the execution plans.

“Through the manipulation of the judicial system, these men continue to torment the victims’ families in seeking, by any means, to avoid their just punishment,” the prosecutors said in a joint statement issued Thursday.

The Arkansas Supreme Court said in a 4-3 ruling that it would not reconsider its decision to stay Johnson’s execution. Attorney General Leslie Rutledge’s office said she would not appeal that decision to the U.S. Supreme Court.

Lawyers for the state have complained that the inmates are filing court papers just to run out the clock on Arkansas’ midazolam supply. Prisons director Wendy Kelley has said the state has no way to obtain more midazolam or vecuronium bromide. At one point in the proceedings before a federal judge last week, Arkansas Solicitor General Lee Rudofsky declared, “Enough is enough.”

New justice Neil Gorsuch voted with the majority of five on the U.S. Supreme Court to deny the stay of execution sought by Lee and the other inmates. Justice Stephen Breyer said in a dissent he was troubled by Arkansas’ push to execute the inmates before its supply of midazolam expires.

“Apparently the reason the state decided to proceed with these eight executions is that the ‘use by’ date of the state’s execution drug is about to expire...In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random,” Breyer wrote.