State judge halts executions

SATURDAY UPDATE: Federal judge issues order blocking Arkansas executions

A Pulaski County circuit judge on Friday halted six scheduled executions -- the first of which was scheduled for Monday -- by ordering the state's Department of Correction not to use the second drug in the three-drug cocktail.

Judge Wendell Griffen, who protested the executions outside the Governor's Mansion on Friday, issued a temporary restraining order within an hour of the filing of a lawsuit by the pharmaceutical company McKesson Medical-Surgical Inc. and set a hearing for 9 a.m. Tuesday.

The order came as the condemned inmates awaited a federal judge's ruling on their request to temporarily stop the executions and after the state Supreme Court granted an emergency stay in the case of one inmate, Bruce Earl Ward, amid his lawsuit claiming mental incompetence.

McKesson's suit claims that the state Department of Correction circumvented the Delaware corporation's controls by placing an order for 100 vials of vecuronium bromide "through a familiar customer sales representative" and failing to disclose it would be used for executions, a breach of McKesson's agreement with the drug manufacturer. The company asked for a temporary stay.

[DOCUMENT: Click here to read Judge Wendell Griffen's full order 📄 ]

[DOCUMENT: Click here to read the full complaint filed by Medical supplier McKesson 📄 ]

The state attorney general's office will immediately appeal the decision with the state's high court, spokesman Judd Deere said.

"As a public opponent of capital punishment, Judge Griffen should have recused himself from this case," Deere said in a statement. "Attorney General [Leslie] Rutledge intends to file an emergency request with the Arkansas Supreme Court to vacate the order as soon as possible."

Also Friday, Ward received a temporary reprieve after his attorneys in the federal public defender's office sought to block the killing on grounds that Ward cannot understand his punishment.

Ward is the second inmate whom courts have granted an individual stay. A federal judge granted a stay for Jason McGehee after the state Board of Parole recommended his sentence be changed to life in prison. Gov. Asa Hutchinson has not yet decided whether to grant McGehee clemency.

Ward and McGehee are two of nine Arkansas inmates seeking to temporarily delay the executions to allow arguments on whether the pace of lethal injections and execution protocol violate inmates' right to counsel and constitute "cruel and unusual punishment."

U.S. District Judge Kristine Baker had not issued a ruling in that lawsuit as of Friday night.

Arkansas' planned executions -- which would be the state's first since November 2005 -- have generated international media attention. The state initially planned to kill eight men on consecutive Mondays and Thursdays starting Monday after the state Supreme Court removed a prohibition on Arkansas executions in late February.

Hutchinson has said he scheduled the executions so closely together to beat the April 30 expiration date on the state's supply of midazolam, the contentious sedative at the center of legal challenges brought nationally by death-row inmates, and the first drug administered during lethal injections.

The state plans to use midazolam in lethal injections for the first time. That drug would be followed by a paralytic, the vecuronium bromide, before heart-stopping potassium chloride is intravenously administered. Arkansas in March acquired 100 vials of potassium chloride.

Lacking individual stays, the six Arkansas inmates scheduled for execution are Don Davis, Stacey Johnson, Ledell Lee, Jack Jones, Marcel Williams and Kenneth Williams. In total, 34 inmates, all men, live on death row at the state's Varner prison unit in Grady.

Arkansas, one of 27 states where the death penalty remains legal or is not under a ban by a governor, has killed 27 people since 1976, when the U.S. Supreme Court reinstated the form of punishment, according to the Death Penalty Information Center. More than 10 years have passed since the last Arkansas execution because of legal challenges and difficulty obtaining the drugs.

DRUG COMPANIES INTERVENE

McKesson is the third drug company seeking to stop the executions by claiming that the Department of Correction bypassed its controls. West-Ward, a subsidiary of London-based Hikma Pharmaceuticals, and Fresenius Kabi USA, a subsidiary of a German-based company with a similar name, made similar allegations in a joint "friend of the court brief" in the federal Eastern District of Arkansas.

West-Ward produces midazolam, Fresenius Kabi makes potassium chloride, and McKesson distributes vecuronium bromide from Pfizer Inc., which prohibits its drug from being used in capital punishment.

According to McKesson's lawsuit, the Department of Correction "leveraged its medical director's license" by placing an order for the drug by phone July 11, 2016, "at the request of or for the benefit of the physician and ... for a legitimate medical purpose."

Under Arkansas Code Annotated 17-95-704(e)(3) and (4)(A), capital punishment is not a "legitimate medical purpose."

The drugs were shipped to the department's administrative building, where previous orders for the prison health care facility had been sent, McKesson said.

After hearing from the manufacturer, McKesson asked the Department of Correction to return the vecuronium bromide July 21, 2016.

Rory Griffin, a deputy director at the department, told the company that the state agency set aside the drugs for return, and McKesson began issuing a refund and credit for the product, along with a prepaid shipping label, on July 27, 2016, the lawsuit states. A week later, Griffin told McKesson that Department of Correction Director Wendy Kelley would return the drugs only "if McKesson provided an alternative drug to be used in executions."

A month afterward, McKesson sent its final plea, through a letter from its vice president of prescription category and programs, to Kelley and department attorneys demanding the return of the drug. The company has not received them, it said in the lawsuit.

Griffin testified earlier this week in Baker's court that he knew that manufacturers -- and McKesson -- ban the sale of the drug to state and federal correctional facilities wanting to use it for executions, that he made the order through a McKesson sales representative whom he had used before "in traditional health care settings" and that he "knew the employee ... was making a mistake, i.e., that he was not authorized to sell this product to ADC for their undisclosed purpose."

Griffin also testified that the prison system was keeping the drug even though it received a full refund.

In Griffen's Circuit Court, McKesson asked for a temporary halt to the executions, saying the company would suffer "irreparable harm" for being associated with capital punishment and that it would affect its relationship with drug manufacturers.

"ADC bears no corresponding risk," the lawsuit in that court states. "A temporary restraining order and injunction here would not bar ADC's effort to put its inmates to death. ADC can find other means to complete these executions.

The lawsuit continues: "Further, ADC's interest bears no urgency. It has taken ADC decades to schedule the inmates for the death chamber, and ADC has not conducted an execution since 2005. It can wait longer to identify a method to put inmates to death without using deceit to illegally obtain pharmaceuticals."

The company also wants the Department of Correction to return the drugs immediately and for the court to impound the drugs until it holds a hearing.

The other two companies also have asked the judge in the federal case, Baker, to stop the Department of Correction from using its drugs. Baker, who is not required to consider the brief in her ruling, told attorneys that she would read it.

Spokesmen for the two companies have not revealed how or when they learned Arkansas may be in possession of their drugs.

WARD RECEIVES STAY

The Arkansas Supreme Court granted a stay Ward's execution Friday afternoon after requesting earlier in the day that the Jefferson County circuit clerk submit a certified copy of the Jefferson County Circuit Court's decision dismissing Ward's claim.

That order was not immediately fulfilled, further shortening the amount of time the Supreme Court would have to hear Ward's case before his execution, scheduled to begin at 7 p.m. Monday, Ward's attorney Scott Braden said.

Ward's attorneys asked for time to argue that Ward was incompetent to be executed. The Supreme Court granted the stay in a one-sentence order that did not explain why.

"We are grateful that the Arkansas Supreme Court has issued a stay of execution for Bruce Ward so that they may consider the serious questions presented about his sanity," Braden said.

Deere, the spokesman for Attorney General Rutledge, said Rutledge is evaluating options on how to proceed in the Ward case.

A Pulaski County jury in 1990 sentenced Ward to death for the murder of an 18-year-old convenience-store clerk Rebecca Lynn Doss on Aug. 11, 1989. Ward was diagnosed in 2006 as a paranoid schizophrenic.

FEDERAL CASES PENDING

As of late Friday evening Baker had not ruled after a four-day hearing over whether Arkansas' plans to execute the inmates constitute "cruel and unusual punishment."

The hearing, aside from representing the most recent joint bid by the condemned inmates to postpone the executions, is the latest federal challenge in the United States that targets the use of midazolam as the first of three drugs administered in lethal injections across several states.

Medical experts called by the inmates and by state attorneys shared different views on whether the drug at its administered dosage can be expected to render inmates unconscious so that they do not experience severe pain.

The 6th U.S. Circuit Court of Appeals in a 2-1 decision April 6 upheld an order by a federal district judge in Ohio that granted temporary halt to the execution of three inmates. The inmates won the injunction after a hearing that closely overlapped with the Arkansas case.

The appellate court ruling did not take up what it called the "ultimate question" -- whether the use of midazolam "entails a substantial risk of severe pain" compared with an available alternative -- but said the district court did not abuse its discretion by granting the injunction to allow more litigation before the executions take place.

Also Friday, attorneys for the federal public defender's office in Arkansas asked U.S. District Judge D. Price Marshall Jr. to reconsider his refusal last week to stay the execution of Marcel Williams.

Williams was among six death-row prisoners who said they were denied due process under a hurried clemency process designed to accommodate the expedited execution schedule.

After a two-day hearing, Marshall denied all the requests except for that of prisoner Jason McGehee.

In an amended request for a stay filed Friday, assistant federal defenders Jamie Giani and Julie Vandiver cited Marshall's April 6 ruling that he hadn't seen enough evidence that "the deviations from procedure" stemming from the accelerated clemency proceedings "made a real difference."

The attorneys argued that by being limited to one hour before the Parole Board, "Marcel Williams was uniquely prejudiced ... because additional time to present evidence ... likely would have swayed two additional members of the Board to recommend clemency."

They cited U.S. District Judge Leon Holmes' 2007 decision to grant Williams' petition for a new sentence on the basis that had his jury been able to hear the "compelling testimony of neglect, abuse and privation" that he suffered growing up, they wouldn't have sentenced him to death. The 8th U.S. Circuit Court of Appeals later vacated the order.

Giani and Vandiver argued that because they were told they would be limited to one hour before the board, they limited the number of witnesses, omitting one whose testimony in 2007 led Holmes to recommend that Williams be resentenced to life in prison without parole.

Attaching an affidavit from that witness and others, the attorneys argued that "the live testimony from these additional witnesses would likely have made a great difference in the board's consideration, and this court should now consider this evidence."

Information for this article was contributed by John Moritz, Jeannie Roberts and Linda Satter of the Arkansas Democrat-Gazette.

A Section on 04/15/2017