State justices won't tip hand on death stay

Inmates’ lawyer asks U.S. for more time to file appeal

Executions have been set for (top row, from left) Kenneth Williams, Jack Jones Jr., Marcel Williams, Bruce Earl Ward, and (bottom row, from left) Don Davis, Stacey Johnson, Jason McGehee and Ledell Lee.
Executions have been set for (top row, from left) Kenneth Williams, Jack Jones Jr., Marcel Williams, Bruce Earl Ward, and (bottom row, from left) Don Davis, Stacey Johnson, Jason McGehee and Ledell Lee.

Arkansas' highest court is not saying if it will accept a hypothetical U.S. Supreme Court decision that eight death row inmates need more time to mount an appeal of the state's execution law.

The prisoners -- who have had their executions stayed as they mount their case -- sought a clarification from the Arkansas Supreme Court if that stay would continue should a U.S. justice extend their filing deadline. The Arkansas court on Thursday declined to offer its opinion.

After the state court's ruling, Jeff Rosenzweig, the head lawyer for the eight prisoners, said he would file an appeal on time.

The law on the three-drug method of lethal injection used in Arkansas was upheld in June by the Arkansas Supreme Court, which also ordered the executions of inmates be placed on a 90-day hold, the time in which a normal appeal to the U.S. high court must be filed. The stay could be extended, the Arkansas court said, "for good cause."

The original deadline to file their case with the U.S. Supreme Court is Oct. 19, though Rosenzweig has sought a 30-day extension with Justice Samuel Alito, who oversees such requests within the 8th U.S. Circuit Court of Appeals, which includes Arkansas.

Alito has not said if he will allow an extension. In his motion filed Sept. 23, Rosenzweig asked if the Arkansas justices would view a possible extension from Alito as "good cause," or if they would leave that determination to themselves.

If the petition is filed and the U.S. Supreme Court decides to take the case, the stay on the inmates' executions will remain until the justices decide the case.

Arkansas Attorney General Leslie Rutledge's office has filed responses with Alito and the Arkansas Supreme Court arguing that further delaying the inmates' appeal would unfairly limit the state's ability to execute them because one of the drugs used in executions expires Jan. 1.

Rutledge asked the Arkansas Supreme Court not to address Rosenzweig's request for clarification. She also asked Alito not to allow an extension.

Thursday, the Arkansas court denied Rosenzweig's motion for clarification as premature, and did not give a written opinion explaining its decision. Justice Paul Danielson was the only member of the court to dissent, though he did not say if he would allow an extension or not.

Rosenzweig, a Little Rock attorney who often works on death-penalty cases, wrote in his request to the Arkansas court that he is also preparing for an unrelated murder trial in November and that other lawyers working with him are busy with cases of their own.

In order to ease their burden, Rosenzweig said a Washington, D.C., law firm, Venable LLP, has agreed to provide free assistance with the inmates' appeal to the U.S. Supreme Court.

"We're going to file [the petition] timely, the question is how much time do we have," Rosenzweig said in an interview.

The eight inmates who were scheduled for execution are Don Davis, Stacey Johnson, Jack Jones Jr., Jason McGehee, Terrick Nooner, Bruce Earl Ward, Kenneth Williams and Marcel Williams.

Their deaths have been on hold since they filed a lawsuit last year challenging a 2015 change to the state's execution law that made the manufacturers of the three-drug cocktail exempt from public disclosure.

A ninth death-row inmate, Ledell Lee, has joined the case but has not had his execution scheduled.

The state's supply of vecuronium bromide, an anesthetic, expired at the end of June, but the Department of Correction was able to obtain a new supply. Arkansas' supply of potassium chloride, another drug used in executions, is set to expire Jan. 1.

"[The] prisoners concede that they do not need additional time to complete their petition for certiorari and any extension would be little more than a thinly veiled attempt to extend the stay until after one of the drugs used in the State of Arkansas's lawful execution protocol expires," Deputy Arkansas Solicitor General Nicholas Bronni wrote last month in a response filed with the state Supreme Court.

Bronni's response also accuses Rosenzweig and the prisoners of waiting two months before hiring Venable to assist in the case.

An international firm with 600 lawyers and offices in nine U.S. cities, Venable also employs former U.S. Sen. Mark Pryor of Arkansas. Pryor said in an email to a reporter this week he is not involved in the case.

Metro on 10/07/2016

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