LITTLE ROCK —A Pulaski County circuit judge granted a temporary restraining order Wednesday barring Arkansas from using one of its execution drugs to carry out five executions set for this week and next week.
Also Wednesday, the Arkansas Supreme Court issued an order staying the execution of one of two Arkansas inmates who were scheduled to die Thursday.
A spokesman for Attorney General Leslie Rutledge said Wednesday evening that Rutledge would appeal the circuit judge’s ruling to the Arkansas Supreme Court. Rutledge said she was considering the state’s options regarding the stay of Stacey Eugene Johnson’s execution.
Gov. Asa Hutchinson originally scheduled four double executions for this week and next week, hoping to execute eight inmates before the state’s supply of one of its execution drugs expires at the end of this month.
Because of court stays, Arkansas is no longer seeking to execute three of the inmates, Jason McGehee, Don William Davis and Bruce Earl Ward, this month. In Davis’ case, the stay came shortly before midnight on Monday night, the night he was set to die.
Temporary restraining order issued
Pulaski County Circuit Judge Alice Gray issued her order at the request of medical supply company McKesson Medical-Surgical, which is alleging that the state used deception to obtain the paralytic vecuronium bromide from it, under the pretense that the drug would be used for medical purposes, not for executions.
The state is seeking to use the paralytic as part of a three-drug cocktail to execute the five inmates.
The company filed the suit Tuesday after dropping a previous version over the weekend. In the original case, Pulaski County Circuit Judge Wendell Griffen issued a temporary restraining order that was vacated by the state Supreme Court after McKesson moved for dismissal without prejudice.
On the same day that Griffen issued his order, he took part in an anti-death penalty protest at the Governor’s Mansion.
Rutledge is seeking to have the new suit moved to Faulkner County Circuit Court.
Gray did not rule Wednesday on the merits of McKesson’s claim.
Johnson execution stayed
In a one-page order without explanation Wednesday, the state Supreme Court said it was staying the execution of Johnson pending a hearing on a motion by Johnson for new DNA testing of evidence in his case.
Johnson, 47, was scheduled to die Thursday for the 1993 slaying of Carol Jean Heath of De Queen in her home. Authorities said Heath was raped, beaten and strangled and her neck was cut through to the spine while her two children, ages 6 and 2, were in the house.
Johnson maintains he is innocent and is seeking testing of items including hair, a shirt with blood on it and samples from a rape kit. His lawyers have argued that the items should be tested using up-to-date technology.
Justices Rhonda Wood, Karen Baker and Shawn Womack dissented from the state Supreme Court’s order. Wood and Baker said in separate dissenting opinions that Johnson failed to show that new testing of the physical evidence could show he is innocent despite all other evidence in the case.
“With no explanation or instruction, this matter has been remanded to the trial court for another hearing. Today, our court gives uncertainty to any case ever truly being final in the Arkansas Supreme Court,” Wood wrote.
Rutledge said in a statement Wednesday, “The Arkansas Supreme Court in 2004 unanimously rejected an identical argument brought by inmate Stacey Johnson, but today, by a vote of 4-3, the court has without legal explanation blocked the execution of an individual sentenced by two different juries. I know that this is disappointing and difficult for Carol Heath’s family and her two children who were home at the time of the murder. I am evaluating options on how to proceed to ensure that justice is carried out.”
Nina Morrison, an attorney with the legal defense group Innocence Project, said in a statement the group was “grateful and relieved” that Johnson’s execution was stayed.
DNA tests sought for Lee
Morrison is one of the attorneys representing Ledell Lee, who also was scheduled to die Thursday. Lee’s attorneys have been seeking DNA testing of evidence in his case as well.
Lee, 51, was sentenced to death in the 1993 beating and strangling death of 26-year-old Debra Reese of Jacksonville in her home. He also has been convicted of raping two other Jacksonville women.
On Tuesday, Pulaski County Circuit Judge Herbert Wright denied a motion by Lee’s attorneys for DNA testing. The attorneys filed an appeal with the state Supreme Court on Wednesday.
Morrison said in a statement Wednesday, “There is a significant amount of DNA evidence that has never been tested which could exonerate Mr. Lee and identify the real perpetrator of the crime. Because he, like Stacey Johnson, has never gotten a hearing on his DNA petition, and has maintained his innocence for over two decades, we are hopeful that the Arkansas Supreme Court will also grant him a stay and give him a hearing on the DNA evidence.”
Appeal reaches U.S. Supreme Court
Also Wednesday, the inmates asked the U.S. Supreme Court to review a ruling by the 8th Circuit Court of Appeals in St. Louis that vacated a federal judge’s order staying all of this month’s scheduled executions. The inmates argued there are “unresolved, substantial questions” that justify halting their executions.
In a response, Rutledge said, “This court should … conclude that petitioners’ latest series of stay requests are nothing more than an attempt to prevent Arkansas from carrying out petitioners’ executions decades after petitioners brutally took the lives of young mothers, children and men who just happened to be in the wrong place at the wrong time.”