Legal Issues Remain After Arkansas Executions

Originally published on April 27, 2017 5:11 am

Arkansas, which has been in a race to execute death-row inmates before a key lethal drug expires, plans to hold its final execution in the series Thursday night.

Attorneys for the condemned men have put forth arguments about their innocence, intellectual abilities, mental states and about the execution procedure.

But what happens to those debates after an execution?

Ledell Lee was the first inmate executed this month in Arkansas. There was scant physical evidence tying him to the murder he was convicted of, and he was never given a DNA test before his execution.

Nina Morrison is an attorney who was brought into Lee's case only weeks before he was executed.

"If Arkansas had not been rushing to kill Mr. Lee before their supply of lethal injection drugs ran out, there's no question we would have gotten a DNA test ordered," Morrison says.

That's just one of the concerns highlighted by Robert Dunham, executive director of the Death Penalty Information Center.

"What Arkansas has been doing over the last two weeks is doing long-term damage to the death penalty as an institution," Dunham says.

He points to what he calls an "unprecedented assembly line of executions."

Attorneys for the inmates have complained about that too. They've also argued against the process itself, and what they call the Department of Correction staff's lack of preparation.

Attorneys have made filings about their clients' mental and physical health, and their difficult childhoods.

Stephen Bright, a death penalty attorney and a Yale Law School Professor, says generally when an inmate is put to death, the legal case dies too.

"Once an execution takes place, that's the end of it. The courts don't look at it anymore, because it can't be litigated in the courts. Because it's not a live controversy," Bright says.

But that hasn't stopped some attorneys from considering future legal action to do DNA testing that the courts refused to allow beforehand.

Attorney Julie Gianni, who represents some of the inmates, says after Monday's execution, she saw Marcel Williams' eyes open minutes before he was pronounced dead.

She says that raises questions about whether one of the lethal injection drugs, midazolam, rendered him unconscious.

"The best evidence as to the effects of this kind of procedure are other executions," Gianni says. "What actually happens in the real world? And so I think that these accounts are important in that regard."

Midazolam has been the subject of several last-minute legal arguments this month. The courts have allowed it, but a federal trial will examine whether the drug should be used in future executions.

Copyright 2017 Arkansas Public Media. To see more, visit Arkansas Public Media.

RACHEL MARTIN, HOST:

Tonight, in Arkansas, the state plans to execute its final inmate after a string of executions before its lethal injection drugs expire. Attorneys for the condemned men have argued about their innocence, intellectual abilities, mental states and about the execution procedure itself. Arkansas Public Media's Sarah Whites-Koditschek reports on what, if anything, happens to those debates after an execution.

SARAH WHITES-KODITSCHEK, BYLINE: Ledell Lee was the first inmate executed this month in Arkansas. There was scant physical evidence tying him to the murder he was convicted of. And he was never given a DNA test before his execution. Nina Morrison is an attorney for Lee. She was brought into his case only weeks before he died.

NINA MORRISON: I think had Arkansas not been rushing to kill Mr. Lee before their supply of lethal injection drugs ran out, there's no question we would have gotten a DNA test ordered.

WHITES-KODITSCHEK: That's just one of many concerns that Robert Dunham has. He's executive director of the Death Penalty Information Center.

ROBERT DUNHAM: I think that what Arkansas has been doing over the last two weeks is doing long term damage to the death penalty as an institution.

WHITES-KODITSCHEK: He points to what he calls an unprecedented assembly line of executions. The attorneys for the inmates have complained about that, too. They've also argued against the process itself and what they call the Department of Corrections staff's lack of preparation. Attorneys have made filings about their client's mental and physical health and their difficult childhoods. Stephen Bright is a death penalty attorney and a Yale Law School professor. He says generally when an inmate is put to death, the legal case dies, too.

STEPHEN BRIGHT: Once an execution takes place, that's the end of it. The courts don't look at it anymore because it's - it can't be litigated in the courts because it's not a live controversy.

WHITES-KODITSCHEK: But that hasn't stopped some attorneys from considering future legal action to do DNA testing that the courts refused to allow beforehand. Attorney Jamie Gianni (ph) represents some of the inmates. On Monday, she says she saw Marcel Williams' eyes open minutes before he was pronounced dead. She says that raises questions about whether one of the lethal injection drugs - midazolam - rendered him unconscious.

JAMIE GIANNI: So the best evidence as to the effects of this kind of procedure are other executions. What actually happens in the real world? And so I think that these accounts are important in that regard.

WHITES-KODITSCHEK: Midazolam has been the subject of several last-minute legal arguments this month. The courts have allowed it but a federal trial will examine whether the drug should be used in future executions. For NPR News, I'm Sarah Whites-Koditschek in Little Rock.

(SOUNDBITE OF MOONCAKE'S "MANDARIN") Transcript provided by NPR, Copyright NPR.

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