The Arkansas Supreme Court late on Wednesday stayed the execution of Stacey Johnson, one of two inmates due to die on Thursday, and returned his case to the trial court for reconsideration of potential DNA evidence, handing the state another obstacle as it tried to execute eight prisoners in 10 days.
Minutes later a state circuit judge granted a temporary restraining order barring the state from using one of three drugs employed in its execution protocol. The order was requested by McKesson Medical-Surgical, Inc, which has accused the state of obtaining the drug, pancuronium bromide, under false pretenses.
McKesson said it would not have sold the drug to the Arkansas prison system had it known it would be used in executions. The company is demanding that the drug either be returned or impounded.
Arkansas officials have said they are unable to obtain the necessary drug from any other source, and have acknowledged in court papers that should McKesson prevail, all pending executions would be effectively blocked.
The state had planned to executive the inmates in four pairs over 10 days. The sentences of three of the prisoners were stayed in earlier proceedings.
State Attorney General Leslie Rutledge, a Republican, said through her spokesman Judd Deere that she would appeal the restraining order to the state Supreme Court. An appeal of Johnson’s stay of execution was undecided, Deere said. Pending before the U.S. Supreme Court is an appeal by all eight inmates, who contend the compressed execution schedule increased the likelihood of a botched execution and that one of the three drugs, midazolam, has been proven ineffective in rendering unconsciousness prior to administration of the two lethal agents.
A federal appeals court had rejected their arguments after a district judge had sustained them.
The executions set for Thursday would have been the first in Arkansas in a dozen years, and the eight together would have been the most for any state in as a short a period since the U.S. death penalty was reinstated in 1976.
Governor Asa Hutchinson set the unprecedented schedule due to one of the drugs in the state’s lethal injection mix expiring at the end of the month. He said on Wednesday he was “both surprised and disappointed” by the delays.
Johnson was convicted of the 1993 murder and sexual assault of Carol Heath. Prosecutors said he beat, strangled and slit Heath’s throat while her 6-year-old daughter watched.
Johnson’s lawyers said experts have proven the child’s testimony was unreliable. They also said the execution should be put on hold to allow for newer types of DNA testing that were previously unavailable.
“Today’s techniques are much more sophisticated and precise than the methods used before trial,” attorney Jeff Rosenzweig said after the ruling. “We think it will go a long way toward exonerating him.”
Rutledge said in a statement that the decision would be upsetting to Heath’s family.
Lee was convicted of beating Debra Reese to death with a tire iron in 1993. On Tuesday, a state judge denied a motion from Lee’s lawyers for DNA testing.