WASHINGTON — One condemned man’s fate remained in question Monday until nearly midnight in Arkansas, where the state was stopped from carrying out the first two of eight scheduled executions in April.
Although the Arkansas Supreme Court had issued stays of execution for Don Davis and Bruce Ward — both to have been executed Monday — the state asked the US Supreme Court to vacate the stay for Davis.
With the death warrant signed by Arkansas Gov. Asa Hutchinson due to expire at the end of Monday, the state was preparing witnesses for the scheduled execution in the final 30 minutes of the day — in the hopes that the justices in Washington would allow the execution to proceed.
The US Supreme Court refused to step in and lift the stay, however, denying the state’s request with the clock ticking down to midnight.
Arkansas Attorney General Leslie Rutledge’s office has asked the US Supreme Court to vacate the stay of execution granted to Davis, on death row for the 1990 shooting death of Jane Daniel. Davis’ lawyers opposed the request to lift the stay.
The last-minute fight over Davis’ scheduled execution was just the latest in a flurry of litigation resulting from the state’s aggressive execution schedule — which itself came about, Arkansas Gov. Asa Hutchinson has acknowledged, because one of the state’s execution drugs is due to expire at the end of the month.
Earlier Monday, a federal appeals court sided with the state in a challenge brought by the death-row inmates largely based on questions surrounding the sedative — midazolam — that is due to expire soon. The drug has been at the center of several botched executions in recent years, although the US Supreme Court upheld Oklahoma’s protocol, which included the drug.
A district court judge had ruled over the weekend that the inmates were likely to succeed in their challenge to the state’s protocol. As such, the district court put all eight scheduled executions on hold. The state appealed to the US Court of Appeals for the Eighth Circuit. The court, sitting en banc — meaning the whole appeals court — ruled 7-1 against the inmates Monday evening in ending that stay of execution entered by the district court.
The appeals court decision meant the state was able to continue attempts to carry out executions — two a night on four nights in a 10-day period — although other challenges stood in their way.
Those challenges led the state to stop with appeals trying “at this time” to execute the other man scheduled to be executed Monday. The Arkansas Supreme Court had granted that man, Bruce Ward, two different stays of execution — relating to two different claims his lawyers raised.
The state high court previously granted a stay of execution for Ward on a claim that he lacks the competency to face execution. The state asked the court to reconsider the stay, which the court declined to do Monday evening.
Then on Monday, the court granted an additional stay to Ward and a stay for Davis on a claim that their executions should both be stayed pending the outcome of a case before the US Supreme Court currently, McWilliams v. Dunn. McWilliams will address whether the expert assistance an indigent defendant is provided at trial must be independent of the prosecution. In their argument in favor of the stay, lawyers for Davis and Ward wrote that both men “have been denied this right.” Three justices of the state’s high court dissented from the stays in two written opinions.
Although Rutledge tweeted that she would appeal the ruling to the US Supreme Court as to both men’s cases, her office announced a little past 8 p.m. ET that the office only would be continuing in efforts Monday to proceed with Davis’ execution.
After the US Supreme Court denied her request as to Davis, Rutledge issued a statement calling Monday night’s halted execution “heartbreaking” for the family of Jane Daniel.
She also, though, made clear that she would continue fighting in court to proceed with the remaining scheduled executions over the coming days. The next two executions — of Stacey Johnson and Ledell Lee — are scheduled for Thursday.
As such, the coming days likely will involve significant additional litigation — including a likely request for US Supreme Court review of the ruling against the inmates on their federal claim that the state’s execution protocol — which uses the sedative midazolam — is unconstitutional.
Also Monday evening — in yet another piece of litigation surrounding the state’s executions — the Arkansas Supreme Court vacated a temporary restraining order that a state trial court judge had entered last week barring the state from using the vecuronium bromide it had purchased from McKesson Medical-Surgical in its executions.
The company — which contractually prohibits its drugs from being used in executions — alleged the state purchased the drugs under false pretenses.