Updated 8:05 p.m. Nov. 3 with court action - The U.S. Supreme Court has hit pause on Tuesday night's scheduled execution of Ernest Lee Johnson.
The high court issued a stay, pending the outcome of one of his appeals. It centers on claims that the state's execution drug pentobarbital could cause Johnson to experience violent seizures, due to part of his brain being removed in 2008 during surgery to remove a tumor.
Johnson's complaint was dismissed by U.S. District Judge Greg Kays last week, but Tuesday night Justice Samuel Alito referred the question to the full Supreme Court. The Supreme Court ordered the 8th U.S. Circuit Court of Appeals to determine whether the complaint was properly handled.
Jeremy Weis, Johnson's attorney, said he's not sure if the appeals court will hear the case itself or send it back to Judge Kays.
"I think that’ll be sorted out over the next few days," Weis said. "We have a long way to go, but we're certainly more confident than (what) we were when we started the day."
A second appeal centers on Johnson's mental capacity. Weiss says his client's IQ was measured to be 67 shortly after he was found guilty of murder.
"While the (U.S. Supreme) Court didn't grant a stay (for) that, it did not rule on the pending application for certiorari," Weiss said. "I suspect that will be ruled on in the Court's normal course, now that the urgency is not there."
Meanwhile, department of corrections spokesman Mike O'Connell told the Associated Press that there is "no indication that the courts will resolve the matter before 6 p.m. Wednesday," meaning that a new execution date would have to be chosen.
Original story - Barring clemency or any granted stays, Ernest Lee Johnson will become the seventh death row inmate executed in Missouri this year, and the 19th since the state resumed lethal injections two years ago.
Johnson was convicted and sentenced to death in the 1994 murders of Mary Bratcher, Fred Jones and Mabel Scruggs. The three victims were all killed at a Casey’s General store in Columbia, where they were employed at the time.
According to prosecutors, Johnson had planned to rob the convenience store. Police found the victims’ bodies inside the store, along with a bloody hammer. All three died from blunt force trauma, and one of the victims also had stab wounds. A bloody screwdriver was found in a nearby field.
After obtaining a search warrant for Johnson’s girlfriend’s house, Columbia police found a pair of tennis shoes with a logo that matched bloody footprints at the scene, along with cash, coin wrappers and a receipt from the convenience store.
Other articles of clothing found by police also contained splattered blood that was later matched to two of the murder victims.
Johnson was convicted in 1995 of killing Bratcher, Jones and Scruggs, and was sentenced to death. However, the Missouri Supreme Court vacated his death sentence and ordered a new sentencing hearing, based on questions as to whether Johnson had insufficient representation at trial. But after the hearing, Johnson was sentenced to death again.
That sentence was also later tossed out by the state Supreme Court, this time because of questions surrounding Johnson’s mental capacity. Another sentencing hearing, though, resulted in the death sentence being reinstated again.
The Missouri Supreme Court last month issued an execution order, which triggered the latest appeal, this one based on Johnson’s physical health. He was diagnosed in 2008 with a slow-growing brain tumor and underwent surgery that same year. Doctors were not able to remove all of it, and the surgery itself scarred and destroyed part of his brain.
Johnson’s attorneys argued that pentobarbital, the execution drug used by Missouri, could cause him to suffer violent and uncontrollable seizures and would thus constitute cruel and unusual punishment. They argued that their client would prefer to be executed by gas chamber, saying that it “would significantly reduce the substantial and unjustifiable risk of severe pain.”
U.S. District Judge Greg Kays ruled against Johnson on Oct. 28, saying in part:
“Johnson claims that ‘temporary relief may cause a short, finite delay in the execution,’ but … he provides no basis for his assertion that (the Department of Corrections) can rapidly and cost-effectively adopt his preferred method of execution. And because Johnson appears to have sat on his rights for some time, any impending harm remediable by injunction is at least somewhat of his own creation. He has had all facts necessary to prosecute his claim for almost two years. He has known about his brain defects since 2008, and, according to him, the State has planned to use pentobarbital in executions since November 2013. Notwithstanding, he delayed filing his case until twelve days before his execution is set to occur.”
Kays did acknowledge in his ruling that Johnson could experience physical pain and seizures from the use of pentobarbital in his lethal injection execution. His full opinion can be found here.
Corrections officials responded by saying that Missouri has carried out 18 executions since November 2013 that were “rapid and painless.”
Johnson’s attorneys have also argued that he was subjected to physical, mental, and sexual abuse as a child, to the point that he was unable to care for himself when he became an adult.
The Associated Press contributed to this report.
Follow Marshall Griffin on Twitter: @MarshallGReport