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The Arkansas Supreme Court's decision to lift a ban on the death penalty stole the rights of the nine convicted killers who filed suit to challenge the state's execution procedures, and it forces all state courts to continue that theft, Pulaski County Circuit Judge Wendell Griffen said in a ruling Tuesday.

"It amounts to theft of the rights guaranteed by the Constitution of this state and the Constitution of the United States to a trial," the judge wrote.

The ruling issued Tuesday by Griffen, a former Court of Appeals judge known for his outspokenness, formally ends 21 months of state-court litigation over the legality of the state's execution protocols.

Griffen's dismissal of the inmates' Circuit Court lawsuit comes as eight of those inmates face lethal injection next month in four two-per-day execution sessions.

The prisoners have filed two federal lawsuits this week attempting to halt the process.

On Tuesday, they sued to stop the ongoing clemency hearings, arguing that the state is moving forward with their executions so quickly that their clemency petitions are not getting the consideration required by law.

[DOCUMENT: Read Judge Wendell Griffen's full order]

A federal lawsuit that they filed Monday disputes that the anesthetic midazolam will give them the painless death they are entitled to under constitutional protections that bar the infliction of cruel and unusual punishment.

The inmates had disputed the effectiveness of midazolam at preventing suffering as part of their 2015 state-court lawsuit before Griffen.

But they were not allowed to present their evidence in court because the Supreme Court ignored "decades" of case law to dismiss their entire lawsuit even before all of the issues the inmates had raised had been decided, Griffen wrote in Tuesday's order and memorandum.

"To think that the highest court in Arkansas would compel every other court in Arkansas to steal the last right condemned persons have to challenge the constitutionality of their execution illustrates the travesty of justice, and the damnable unfairness, this court is powerless to prevent," Griffen wrote.

State lawyers asked Griffen on March 16 to dismiss the killers' lawsuit based on the Supreme Court's June 2016 findings, a 4-3 decision written by Justice Courtney Goodson that reinstated the death penalty after a 10-year hiatus.

Arkansas has not carried out an execution since 2005 because of litigation by inmates who have disputed the legality of changes the Legislature has made to the state's execution procedures over the past several years.

On March 17, the inmates' attorneys asked Griffen to rule in their favor on issues in the lawsuit that they stated the Supreme Court holding did not address.

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But the judge wrote that the Supreme Court decision required him to dismiss the lawsuit.

His 10-page ruling also states that the high court ignored decades of case law to deliberately deny the inmates their rights, and it suggests that the justices violated the oath all attorneys take to uphold the law to reach their conclusions.

"It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state. As such, it is more than troubling and more than shameful," Griffen wrote.

Midazolam

Arkansas' execution schedule seeks to put the eight men to death before the state's supply of midazolam expires on May 1.

The drug is an anesthetic used to render the inmates unconscious so they do not feel the effects of the other two drugs used, potassium chloride to stop the heart and vecuronium bromide to stop the breathing. The state's execution law requires that lethal injections use those three specific drugs.

The 2015 suit filed by the eight prisoners, plus one other death-row inmate, challenged the effectiveness of the anesthetic.

The high court threw out the lawsuit and reinstated the death penalty on an appeal filed by state lawyers after Griffen denied the state's motion to dismiss the suit.

Griffen had rejected the state's argument that the inmates had failed to offer sufficient proof that Arkansas' execution law violated their right to be put to death in a pain-free manner.

The state's appeal also challenged Griffen's ruling that the inmates had a right to know where the state was getting its supply of execution drugs, a decision that overturned Legislature-imposed secrecy on the source of the drugs.

"The decision reversing this court skirted plaintiffs' assertion on that [midazolam] point altogether," Griffen's ruling Tuesday said.

"This court is, of course, obliged to follow that ruling. However, this court will not ignore the obvious, and apparently deliberate, effort by the Arkansas Supreme Court to deny plaintiffs an evidentiary hearing on their contention that midazolam ... is incapable of rendering someone insensate to pain while in an unconscious state."

By dismissing the entire lawsuit like it did, the Supreme Court guaranteed that these inmates -- or the ones to follow -- cannot challenge the efficiency of the execution drugs required under the current law, even if they have evidence that those drugs don't work like they should, Griffen wrote.

"The Arkansas Supreme Court has decided, in a ruling that is both plain and troubling, that plaintiffs are not entitled to a trial on their contention that the three-drug protocol prescribed [by law] will cause each of them severe pain and suffering.

"This court cannot entertain pleadings concerning those allegations. No other trial court can do so in Arkansas," he wrote. "It is troubling that a judge may not even hold a trial in this situation. It is troubling that a judge may not evaluate the proof that plaintiffs seek to offer in support of those allegations. It is troubling that a judge may not evaluate the proof defendants would offer to counter any proof plaintiffs might introduce."

Griffen's criticism of the high court also comes three months after the Supreme Court, in a 4-3 decision, admonished another Pulaski County circuit judge who had appeared to criticize the court in an order the justices subsequently overturned.

Judge Tim Fox had denied a request by state lawyers to stay a ruling he had made against the Department of Health until the issue could be decided on appeal. Fox wrote that to impose such an "unnecessary" delay would deprive those plaintiffs of their constitutional rights.

As an example of such a court-imposed delay, Fox's ruling referred to how the Arkansas Supreme Court never reached a decision on the question of whether the state's ban on same-sex marriages was legal, despite the justices' promise of an expedited ruling.

But it was only after the U.S. Supreme Court struck down prohibitions nationwide on those marriages that the Arkansas high court acted, by ruling that the justices did not have to make a decision since the matter had been settled for them.

Those delays "do not promote societal confidence in judicial decisions. Such delays provide a breeding ground for speculation of political intrigue or other illegitimate reasons for the delay -- whether true or not," Fox wrote.

As part of a December high-court ruling written by Justice Jo Hart that overturned Fox's decision, he was admonished for his "inappropriate remarks."

Hart wrote that as a judge, Fox had a duty under the Arkansas Code of Judicial Conduct to support the judiciary and not make attention-seeking remarks that undermine the public's confidence in the impartiality and fairness of the state's court system.

A Section on 03/29/2017

Print Headline: Suit over execution drug gets dismissal

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