A Missouri death row inmate who came within hours of being executed earlier this month will have his appeal heard by a three-judge panel.
The U.S. Supreme Court granted a stay on Nov. 3 to Ernest Lee Johnson, based on whether a lower court properly handled his complaint about the state's execution drug. The order from the high court arrived around 40 minutes into the 24-hour execution window.
Johnson contends that pentobarbital could cause him to have violent seizures due to part of his brain being removed during cancer surgery in 2008.
"The U.S. Supreme Court has made clear that one of the things that any person challenging this is required to do is come up with an alternative method of execution, which we've done," said Jeremy Weis, Johnson's attorney.
Johnson had requested to instead be put to death by gas chamber, but U.S. district judge Greg Kays said "no," ruling that Johnson had, in effect, waited too long and that "any impending harm ... is at least somewhat of his own creation."
Weis contends that lethal injection, in this case, would constitute cruel and unusual punishment.
"It doesn't ultimately spare the individual (from) execution, it just ensures that they are getting a process that won't violate the 8th Amendment," Weis said.
Johnson's hearing is scheduled for the week of Jan. 11, before a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis. Weis said that an exact date has not yet been chosen.
If Johnson's appeal is denied, the execution clock would not automatically begin ticking again. Attorney General Chris Koster would have to ask the Missouri Supreme Court to schedule a new execution date.
Johnson was convicted and sentenced to death for the 1994 murders of three convenience store workers in Columbia: Mary Bratcher, Fred Jones and Mabel Scruggs.
Weis, meanwhile, is working on another appeal that would have Johnson's death sentence overturned, based on his client's mental capacity. His IQ was measured to be 67 shortly after he was convicted of murder.
"That remains a pending case in front of the U.S. Supreme Court," Weis said, "so we still remain hopeful that the court will take that and consider the issues that we raised."
Follow Marshall Griffin on Twitter: @MarshallGReport
