Major milestones today in Arkansas execution proceedings (Update 3)

With two inmates scheduled to be executed Monday evening by lethal injection, there are multiple tracks of legal pursuits seeking to continue and halt the death row cases.

After a weekend of legal wrangling that left much in limbo, these are four major milestones to watch for in Monday’s developments surrounding the executions of Bruce Ward and Don Davis and five other death row inmates.

1) Arkansas Supreme Court rulings

Just before midday, the Arkansas Supreme Court acted again on its stay of execution for Bruce Ward, who was scheduled for lethal injection this evening. The state’s high court issued the stay Friday without comment. Arkansas Attorney General Leslie Rutledge has moved for reconsideration. but the Supreme Court declined her request leaving the stay in place. The state Supreme Court has not acted on that motion to reconsider yet, but if it maintains its position, a potential appeal to the U.S. Supreme Court may be the only option for Rutledge. (The AG’s office earlier stated that the Arkansas Supreme Court upheld its stay, but it actually just issued a technical correction to its Friday order.)

In addition to Ward, Don Davis – also scheduled for execution this evening – has a request for stay with the Arkansas Supreme Court and the court has yet to act on it. Davis also has an appeal pending before the 8th Circuit Court of Appeals in St. Louis.

Davis’ appeal for a stay of execution with the Arkansas Supreme Court was accepted, but the 8th Circuit denied his request. Rutledge has asked the U.S. Supreme Court to vacate the state Supreme Court stay of execution.

The Arkansas Supreme Court also lifted a temporary restraining order (TRO) that was put in place late Friday afternoon by Pulaski County Circuit Judge Wendell Griffen. A drug manufacturer had filed suit to prohibit its potential drugs from being used in the lethal injection cocktail given by the state. The drugmaker withdrew its lawsuit, but the TRO remained in place halting the execution process until the Arkansas Supreme Court’s action.

2) Submission of acceptable viewing methods for the execution

In her preliminary injunction on Saturday morning, Judge Kristine Baker acknowledged that the Department of Corrections viewing policies were “unreasonable restrictions of plaintiffs’ right to counsel and right of access to the courts.”

She charged that the parties involved “jointly present” to the court by noon on Monday an “appropriately tailored viewing policy.” If the parties fail to come to an agreement on the matter, Judge Baker instructed both sides to present proposals in writing by noon presumably for her to make a determination.

UPDATE 1: Apparently, both sides were able to agree on terms for the viewing policy during the executions.

A joint execution viewing policy between Death Row inmates and the state has been agreed upon, according to the Arkansas Attorney General’s Office. Each inmate will be allowed to have up to three attorneys inside the Arkansas Department of Correction’s Cummins Unit before and during the proposed execution times. Those attorneys will be allowed to bring one cell phone in the facility that doesn’t have video or audio capabilities and it will be inspected and kept by the ADC deputy director or his designee until the execution.

One attorney will be allowed to remain in the cell with the inmate leading up to the execution time. Multiple attorneys will be allowed to communicate with the inmate in his cell, but only one at a time will be allowed in there. Up to two attorneys will be allowed to view the execution. Curtains in the execution room will remain closed until all witnesses are seated and the execution is slated to begin.

If the attorneys need to make a cell phone call or other communication during the execution, one attorney will be allowed to exit the witness room. The cell phone provided to the deputy director or designee will be used. If the approved cell phone malfunctions, or doesn’t operate, a landline telephone will be provided in an adjacent building 40 to 50 yards away.

3) 8th Circuit Court of Appeals activity

There will be a lot of activity at the 8th Circuit Court of Appeals in St. Louis on Monday. AG Rutledge formally filed her appeal of Judge Baker’s preliminary injunction. In the appeal, Rutledge argued that the inmates have had plenty of time to petition the court, but have waited until the last days of the process to exercise their rights. “Justice delayed is justice denied,” she concluded.

From the brief filed in the 8th Circuit: “No matter what excuse Appellees attempt to make, they cannot avoid the undisputed fact that they could have brought a federal constitutional challenge to Arkansas’s midazolam protocol—including challenging items aside from the drugs used—at any time after the protocol was adopted in early 2015. Indeed, blatantly attempting to manipulate the judicial system and shield themselves from justice, Appellees brought a federal constitutional challenge to Arkansas’s lethal injection protocol in 2015 and later voluntarily dropped that challenge to avoid litigating in federal court.

“Because Appellees intentionally — and strategically — sat on their alleged federal rights for years, they are not entitled to a stay that would allow them to litigate claims that could have been calmly and fully litigated if they had pursued them years earlier. Indeed, it would violate basic principles of equity and the Supreme Court’s repeated admonishment that death row inmates cannot sit on their rights and then demand a stay to litigate claims on the eve of their executions. And sustaining stays issued in response to such tactics would only encourage other inmates to do what Appellees have done here.”

Look for the federal appellate court to continue or reverse all or parts of Judge Baker’s preliminary injunction. Also, be on the watch for a ruling on Don Davis’ appeal specific to his individual case. In both instances, expect appeals to the U.S. Supreme Court from either side.

UPDATE 2: Following an en banc hearing, the 8th Circuit Court of Appeals granted a motion by Arkansas Attorney General Leslie Rutledge to vacate the stays of executions granted by U.S. District Court Judge Kristine Baker.

“Under our view of the correct legal standard, we cannot agree with the district court that the prisoners have demonstrated a significant possibility of establishing a known and available alternative that would significantly reduce a substantial risk of severe pain,” noted the majority opinion in the ruling. “Even assuming a risk of pain from the current method, the availability of the several methods cited by the district court is too uncertain to satisfy the rigorous standard under the Eighth Amendment.”

The majority also noted, “The possibility that Arkansas could acquire pentobarbital for use in executions is too speculative to justify stays of execution.”

In the portion of the ruling addressing alternatives to lethal injection, the majority dismissed the notion of a firing squad.

“The firing squad has been used by only one State since the 1920s. It requires trained marksmen who are willing to participate and is allegedly painless only if volleys are targeted precisely. The record comes short of establishing a significant possibility that use of a firing squad is readily implemented and would significantly reduce a substantial risk of severe pain.”

Judge Jane Kelly dissented from the majority opinion.

“This case is not only about midazolam. Any increased risk of pain from midazolam in this case is compounded here by the compressed execution schedule and Arkansas’ execution procedures,” she noted. “Together, these factual elements fully support the district court’s conclusion that using midazolam to execute eight men over an eleven day period with limited contingency procedures creates a substantial risk of serious harm. I would hold that the district court did not err in concluding that the appellees’ midazolam claim, standing alone, supports a grant of preliminary injunction. But, more significantly, the district court did not clearly err in concluding that, in combination, the risks inherent in the state’s procedure likely violate the Eighth Amendment.”

4) Death warrants expiration

A final milestone to watch for on Monday includes the expiration of the death warrants issued for tonight’s executions.

When the governor set an execution date, the death warrant proclamation declares the day for the execution to occur. There is not a specific time of day, but it is generally defined as a 24-hour period.

Depending on today’s legal outcomes, the state could run out of time to carry out the executions within the remaining time period. There are a number of protocols that have to unfold ahead of the actual lethal injections. So if there is still legal limbo or stays of execution in place, there may not be time to carry out the procedures necessary for the death penalty. This could lead to the governor delaying the executions and setting a new execution date, but there is debate as to whether or not he could simply extend the date by a few days or if the entire death penalty notification process, which could restart a 30-day notification period, would come into play.

Talk Business & Politics will update this story as developments unfold throughout the day.