|Ernest Lee Johnson|
Attorneys for a man sentenced to death for a 1994 triple murder filed a new complaint in federal court on Monday, arguing again that a medical condition will cause pain and suffering if he is executed but offering a more detailed alternative.
Because of a brain defect caused by the removal of part of a tumor in 2008, if Ernest L. Johnson is executed using Missouri’s lethal injection protocol, “there is a substantial and unjustifiable risk that the execution will result in violent and uncontrollable seizures that will cause severe pain and serious harm,” violating the Eighth Amendment prohibition on cruel and unusual punishment, his attorneys wrote in the complaint.
Whereas Johnson’s lawyers, W. Brian Gaddy and Jeremy Weis, had previously written that Missouri law allows the use of lethal gas, they have now given a specific second option. Precedent requires inmates challenging an execution method to propose an alternative, but Missouri has not had an operable gas chamber since the mid-1960s.
Gaddy said because the U.S. Supreme Court case that set the precedent, Glossip v. Gross, was decided in 2015, there is some gray area on how challenges to protocols will be litigated.
“The issues involving alleging and improving an alternative method of execution are new issues that haven’t been fully developed in the court system,” he said.
He said he looks forward to arguing the case in U.S. District Court and to seeing whether the state will agree with using gas to kill Johnson.
“That would be new territory, and we would cross that bridge when we get to it,” Gaddy said.
Missouri law does not define what type of lethal gas is to be used in executions, the complaint said, and allows the director of the Department of Corrections to determine which can be used. Recent legislation passed in Oklahoma allows “the use of nitrogen gas which can induce” a shortage of oxygen “as a method of execution,” Johnson’s lawyer wrote. They also filed a copy of a study lawmakers in Oklahoma commissioned that shows, according to the complaint, that nitrogen gas is a safe, cheap and readily available alternative to injection.
The necessary implements for nitrogen-induced hypoxia are available in the open market, and the gas can be given to Johnson via a mask, hood or other enclosed device, the complaint said, making it unnecessary to build a new, operable gas chamber.
“An execution by lethal gas would significantly reduce the substantial and unjustifiable risk of severe pain that currently exists with Missouri’s current lethal injection method, as applied to Mr. Johnson,” the complaint said.
Johnson was sentenced to die for the February 1994 murders of Mary Bratcher, Mable Scruggs and Fred Jones in a drug-fueled robbery at a northeast Columbia convenience store. Courts twice overturned his sentence, but a third challenge was unsuccessful. His execution was postponed again in November when the U.S. Supreme Court sent his case back to the Eighth U.S. Circuit Court of Appeals, which subsequently sent it back to U.S. District Court, where Monday’s complaint was filed.
Nanci Gonder, spokeswoman for the Missouri Attorney General’s Office, said an answer to the complaint will be filed by Aug. 22, the deadline for her office to do so. She did not comment further.
Johnson’s attorneys for the second time submitted the affidavit and opinion of Joel Zivot, an Emory University physician, who examined Johnson in summer 2015.
If Johnson does experience seizures and pain in the execution, done via an injection of pentobarbital, the state’s execution protocol does not offer any guidance on what the execution team is supposed to do or how it would treat Johnson if the execution fails to kill him, the complaint said.
“Missouri’s protocol is grossly inadequate to address the significant risks to Mr. Johnson during an execution — risks that could cause an excruciating and severely painful procedure,” the attorneys wrote.
Source: The Columbia Daily Tribune, Alan xx, August 3, 2016
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"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." - Oscar Wilde