|Ernest L. Johnson|
The Eighth U.S. Circuit Court of Appeals on Friday denied a motion to stay the execution of a man convicted of a 1994 triple murder at a north Columbia convenience store.
Ernest L. Johnson, 55, is scheduled to die by lethal injection at 6 p.m. Tuesday. Driven by his addiction to crack cocaine, Johnson on Feb. 12, 1994, robbed Casey's General Store, 2200 Ballenger Lane, and used a hammer and screwdriver to fatally bludgeon Mary Bratcher, 46, Mable Scruggs, 57, and Fred Jones, 58.
Kansas City attorneys W. Brian Gaddy and Jeremy Weis have been unsuccessful in stopping Johnson's scheduled execution.
In 2008, Johnson had surgery to remove part of a tumor in his brain and has since suffered seizures. His lawyers argued in a federal case that his brain condition combined with the pentobarbital creates a "substantial risk" that Johnson will have a violent seizure and a painful death that violates the Eighth Amendment's prohibition on cruel and unusual punishment.
U.S. District Chief Judge Greg Kays on Tuesday denied attempts to halt the execution, writing that Gaddy and Weis had not shown the case would win and that Johnson had not done enough to offer an alternative method of execution.
Gaddy and Weis appealed, and a 3-judge appellate court panel sided with Kays. The panel said Johnson did not present strong enough evidence that pentobarbital would cause pain because of his brain condition. The judges also said Johnson's case was unlikely to succeed because he did not identify an alternative method of execution that could be implemented quickly and would reduce the risk of pain.
His attorneys did argue lethal gas was an alternative execution method, but the court ruled that arguing lethal gas is "legally available in Missouri is not the same as showing the method is feasible or readily implementable alternative method of execution."
A case in Missouri's Supreme Court still is pending. In that court, Gaddy and Weis requested a judge be appointed to consider evidence that Johnson is intellectually disabled. Past attorneys for Johnson unsuccessfully tried to convince juries that his IQ is 67, well below the average of 100, and therefore it would be unconstitutional to execute him.
Neither Gaddy nor Weis responded to messages seeking comment Saturday afternoon.
Johnson is the latest inmate in the country to challenge lethal injection protocols. Paul Litton, a professor at the University of Missouri School of Law, said there probably are more death penalty states in the United States with lawsuits fighting lethal injection procedures than those that are not.
The inmates in nearly every case across the country are challenging the Eighth Amendment standard set by a U.S. Supreme Court decision in the 2008 case of Baze v. Rees.
"It's a heavy burden basically to show that the method of execution presents a substantial or objectively intolerable risk of pain when compared to known and available alternatives," Litton said.
If the Missouri Supreme Court appoints a judge to consider whether Johnson has an intellectual disability, that would delay his execution indefinitely, Litton said. The U.S. Supreme Court ruled in the 2002 case of Atkins v. Virginia that states cannot execute people who are mentally retarded.
Though a Boone County jury sentenced Johnson to death in 1995, that and a subsequent death sentence were overturned. A 2006 Pettis County jury's decision to put Johnson back on death row was upheld.
"There were issues that had to be litigated," Litton said. "There are reasons this has taken awhile. What the death penalty does in a sense to families, instead of helping them, to a great extent you can say this is a case in which the litigation has actually probably harmed" the victims' families.
Source: Columbia Tribune, October 31, 2015