Ark. lethal injection suit to be heard in October

Whether Arkansas resumes executing death-row inmates could hinge on how justices on the state's highest court read 5 words.

Those 5 words "is to be carried out" sit near the beginning of a new law aimed at rendering the lawsuit over lethal injection by death-row inmate Frank Williams Jr. moot. State lawyers say it shows the law applies to all 40 men now awaiting execution on death row. However, Williams' lawyers have told the state Supreme Court that the law can't be applied retroactively in his case.

The high court has scheduled oral arguments for Oct. 8 in Williams' case, which has stalled executions in the state for a year. But if justices agree with state lawyers, they can issue a ruling beforehand to set the stage for Arkansas' first lethal injection since 2005.

Federal public defenders representing Williams filed the lawsuit in 2008, as their client faced a scheduled execution date. They argued the state prison system failed to follow a requirement that state agencies offer notifications and hold public hearings when they made changes to administrative rules. The prison system had altered its execution protocols without following those rules.

A lower court judge issued an injunction halting Williams' execution and the case quickly made its way to the state's highest court. While there, lawmakers this year passed a law freeing the state prison system from following the public notification and hearing rule when it came to execution procedures.

In filings to the court, Assistant Attorney General C. Joseph Cordi Jr. wrote that the new law specifically says that an execution "is to be carried out" by lethal injection. By using that phrase, Cordi said lawmakers declared their intention to have the new law apply to all those awaiting execution on the state's death row, regardless of when they were convicted.

"The act on its face is crystal clear that it applies to every inmate to be executed by lethal injection after the date of the statue's enactment," Cordi wrote.

Cordi said other aspects of Williams' suit, like challenging the 3-drug cocktail used in the lethal injection, also were addressed in the new law.

"An amendment that resolves the merits of a death-row inmate's claim moots the claim despite the inmate's hope to delay or avoid his execution through further litigation," he wrote in another filing.

Julie Brain, a federal public defender representing Williams, wrote that justices should find that the new law can't be applied to Williams now.

The state's "assertion that the lethal injection procedures 'are the same regardless of when a particular condemned inmate received his or her capital sentence ...' merely begs the question of whether the act may be retroactively applied," she wrote. "The answer to which, under this court's precedents, is a resounding 'no.'"

Justices previously scheduled oral arguments over Williams' lawsuit for May, but postponed the hearing and requested lawyers address how the new law affected the case. The Supreme Court scheduled the new oral argument hearing date last week.

The state has executed 27 death-row inmates since the Supreme Court allowed states to resume executions in 1976. The state's last execution took place in 2005, when officials executed condemned killer Eric Nance.

Williams, 43, previously faced a 2008 execution date that Gov. Mike Beebe postponed because of a lower court injunction issued over the lawsuit.

Williams was given the death penalty over the 1992 killing of Lafayette County farmer Clyde Spence. Spence had hoped Williams, a work-release prisoner at his farm, would one day serve as a farm foreman. However, after Spence fired him, Williams returned to the farm at night and shot him to death with a .25-caliber pistol.

Source for both: Associated Press, August 24, 2009