In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Court Decisions Force Arkansas to Halt Execution

VARNER, Ark. — After a pair of court defeats, the state of Arkansas was forced late Monday to abandon its plan to carry out its first execution in more than a decade. The canceled execution of a condemned prisoner here was a significant setback for the state, which had sought to put eight men to death this month, before its stock of a lethal injection drug expired.

On Monday afternoon, the State Supreme Court stayed the execution of Don W. Davis, who was convicted more than a quarter-century ago of a murder in northwestern Arkansas. Then, about 15 minutes before Mr. Davis’s death warrant was due to expire, the United States Supreme Court refused to overrule the Arkansas jurists, who had voted 4 to 3 to halt the execution.

The decisions do not affect five other executions that are scheduled this month at the Cummins Unit.

Until word of the decision from Washington reached the prison here in rural southeast Arkansas, state officials were optimistic that the justices would allow them to proceed. Witnesses moved across the darkened campus toward the death chamber, and Mr. Davis waited for a lethal injection for hours after he was offered what he had planned as his last meal.

“I am disappointed in this delay for the victim’s family,” Gov. Asa Hutchinson said in a statement. “While this has been an exhausting day for all involved, tomorrow we will continue to fight back on last-minute appeals and efforts to block justice for the victims’ families.”

The developments capped a day of waiting, preparation and a series of legal clashes. Although Mr. Davis and other prisoners whose executions had been scheduled for this month had already won stays from a federal judge in Little Rock, the United States Court of Appeals for the Eighth Circuit, in St. Louis, reversed the order, leaving the surprise decision by the state justices as the sole obstacle to the first lethal injection in Arkansas since 2005.

The most prominent legal battles ahead of Mr. Davis’s scheduled execution focused on the constitutional questions that have swirled around Arkansas’s death penalty procedures and a lethal injection drug, midazolam. Critics of the drug have argued that midazolam, a sedative, fails to render a prisoner sufficiently insensate to the pain of other ingredients used in lethal injections.

But Mr. Davis ultimately won a life-sparing reprieve on a matter that was entirely different: whether he should be executed as the United States Supreme Court considers a case about whether poor defendants with mental health problems are entitled to expert witnesses to aid them in preparing and presenting their cases.

Although the Supreme Court has never directly addressed whether such experts must be independent of prosecutors, the justices had long planned to hear arguments on that question next week in a case involving a prisoner from Alabama, James E. McWilliams. The possibility of a ruling that would affect Mr. Davis’s case, the Arkansas justices concluded, was enough to warrant stopping his execution.

The state ruling also applied to Bruce Ward, an Arkansas prisoner whose execution, originally scheduled for Monday, was already the subject of an unrelated stay.

“Both Mr. Ward and Mr. Davis were denied independent mental health experts to help their defense attorneys investigate, understand and present these critical mental health issues to the jury,” Scott Braden, an assistant federal defender who represents both men, said in a statement. “The Arkansas Supreme Court recognized that executing either man, before the court answers this question for Mr. McWilliams, would be profoundly arbitrary and unjust.”

The Alabama case that will go before the Supreme Court next week involves claims by Mr. McWilliams’s lawyers that his rights were violated when a court-appointed psychologist prepared a report that was distributed to both sides. Lawyers for the state responded that there was no right to a “partisan psychiatrist” and that “a neutral court-appointed psychiatrist who is equally available to both parties” was sufficient.

A decision in that case is expected by June. But the Arkansas court’s choice to stop Mr. Davis’s execution could extend his case for much longer, perhaps years, because the state is on the verge of having part of its drug supply lapse. A spokesman for Mr. Hutchinson said he did not believe that Mr. Davis could be put to death before the state’s midazolam expired at the end of this month.

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Source: The New York Times, Alan Blinder, April 17, 2017

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