Day ends without an execution in Arkansas

Published 19 April 2017

GRADY -- Waiting in a windowless cell, steps from Arkansas' death chamber, convicted murderer Don Davis escaped lethal injection Monday night at the Cummins prison unit near Pine Bluff.

The 52-year-old Davis' reprieve came about 11:45 p.m., when the U.S. Supreme Court declined to overturn a stay of his execution handed down earlier Monday by the Arkansas Supreme Court.

Another inmate scheduled to die Monday for his crimes, Bruce Ward, never moved to a Cummins holding cell because Attorney General Leslie Rutledge declined to appeal court stays blocking his execution.

But while the first two of Arkansas' seven intended executions this month didn't take place Monday, Gov. Asa Hutchinson expressed hope the state will carry on with five others by April 27.

"I am disappointed in this delay for the victim's family," Hutchinson said in a news release just after the U.S. Supreme Court announced its decision about Davis' case.

But he cited other court rulings that have "cleared the state to proceed with carrying out the sentences of the other inmates. While this has been an exhausting day for all involved, tomorrow we will continue to fight back on last-minute appeals and efforts to block justice for the victims' families."

Hutchinson in February scheduled eight inmates -- all convicted murderers -- to die this month, two a night on consecutive Mondays and Thursdays. That number in so short a time is unprecedented in modern U.S. history, death penalty experts have said.

The hurried schedule, Hutchinson said, was to allow state prison officials to use their limited supply of the hard-to-obtain sedative midazolam -- part of the three-drug injection protocol -- before it expires after April 30.

There was no court order by Monday night halting the other planned executions, which have drawn attention to Arkansas worldwide and have been characterized as a "conveyor belt" of state-administered death. One of the eight inmates' executions has been postponed because of a clemency appeal. The other seven were pending.

But a Hutchinson spokesman acknowledged the state won't be able to execute Davis or Ward this April.

The U.S. Supreme Court in its one-sentence order late Monday declined to vacate a hold on Davis' execution that the Arkansas Supreme Court granted Monday afternoon. The federal high court's denial of Attorney General Leslie Rutledge's appeal was issued about 15 minutes before the state's midnight deadline to put Davis to death.

The full court heard the appeal, and the order did not note dissent.

The decision capped a long Easter weekend of state and federal appeals and court rulings.

Attorneys for Davis could not be reached for comment late Monday.

Davis was convicted in the execution-style shooting of 62-year-old Jane Daniel in her Rogers home in 1990.

Prosecutors said he robbed a neighbor's house before he saw Daniel returning from errands. He walked her through her house at gunpoint, forcing her to hand over valuables.

Daniel, a wife and mother of four whom family members described as a generous, peace-loving woman, was found dead in her basement, shot through the back of the head.

Pawnshop employees later identified Davis as the man who sold them jewelry and a camera belonging to Daniel.

"It is heartbreaking that the family of Jane Daniel has once again seen justice delayed," Rutledge said. "Davis was convicted of his crimes in 1992, and my office took every action it could today to see that justice was carried out. Ultimately, the U.S. Supreme Court has the final say and has decided not to lift the stay at this time.

"There are five scheduled executions remaining with nothing preventing them from occurring, but I will continue to respond to any and all legal challenges brought by the prisoners. The families have waited far too long to see justice, and I will continue to make that a priority."

Attorneys for Davis and Ward had asked the Arkansas Supreme Court to stop their deaths until the U.S. Supreme Court can decide an Alabama case, which concerns how the mental states of indigent defendants should be examined for trial. That case is to be heard in Washington on Monday.

Davis was initially scheduled to die about 8:15 p.m., according to testimony last week in federal district court.

Awaiting the U.S. Supreme Court decision, Davis ordered a last meal of fried chicken, great northern beans, mashed potatoes, glazed carrots, rolls, fruit punch and strawberry cake.

Prison officials said they didn't know whether the inmate talked with a spiritual counselor. One of Davis' attorneys and a longtime friend, Deborah Sallings of Little Rock, said last week she planned to be at the prison with him.

As hours passed, Arkansas Department of Correction spokesman Solomon Graves said prison officials didn't know when a decision would come or how quickly they could execute Davis. But they were standing by, he said, prepared to carry out the death sentence.

Sometime after 11 p.m., three media representatives chosen to witness the execution were allowed to leave the media center and traveled by car to the south side of Cummins. Their car stopped behind a van of witnesses outside the death chamber, according to an Arkansas Democrat-Gazette reporter who was part of the group.

The driver entered the building and returned, telling the media the execution was "a no-go."

Ward was convicted in the 1989 Little Rock killing of 18-year-old convenience-store clerk Rebecca Lynn Doss.

He initially was scheduled to be the first to die, at 7 p.m. Monday.

The Varner prison SuperMax Unit that houses Ward and other death-row inmates is within sight of the Cummins unit. The two prisons are about 30 miles southeast of Pine Bluff.

At least one of murder victim's Jane Daniel's family members had planned to attend.

"This process puts the families through hell," governor's spokesman J.R. Davis told the media after the Supreme Court decision was announced.

APPEAL TO HIGHEST COURT

The decisions that halted Ward's and Davis' executions came from the Arkansas Supreme Court on Monday.

The Arkansas high court decisions -- by 4-3 votes -- came in response to inmates' attorneys arguing their cases would be affected by the Alabama case pending before U.S. Supreme Court.

That Alabama case aims to determine whether indigent defendants are entitled to a medical expert, independent of the state, who can evaluate the defendant and assist in his trial defense.

About 7 p.m. Monday, Rutledge's office appealed the Arkansas Supreme Court's stay of Davis' execution to the U.S. Supreme Court.

The state did not appeal either of two separate stays blocking the execution of Ward.

In addition to its findings about the Alabama case, the Arkansas Supreme Court on Friday granted a separate emergency relief for him amid claims that he is incapable of comprehending his punishment.

A federal court decision in Little Rock -- and an appeal to 8th U.S. Circuit Court of Appeals in St. Louis -- also played out around the planned executions of Davis and Ward on Monday.

In the ruling that affects all eight inmates scheduled to die this month, the 8th U.S. Circuit Court of Appeals reversed a Little Rock federal judge's decision that would have temporarily blocked their execution.

The appellate court in its 7-1 decision Monday afternoon found that the evidence did not show the state's protocol for executing prisoners is very likely to "cause severe pain and needless suffering."

"Even assuming a risk of pain from the current method," the inmates did not provide a "known and available alternative" to Arkansas' execution method that would significantly reduce that risk, the opinion says.

As of late Monday, attorneys for the eight inmates had not appealed that decision.

U.S. District Judge Kristine Baker, who sided with inmates' claims about pain and suffering, also found they offered multiple available alternative execution methods.

Those included replacing midazolam with a barbiturate more likely to render the inmates unconscious; using an inhaled anesthetic at such a high dose that it is the sole drug necessary; pumping nitrogen through a gas mask to deprive an inmate of oxygen; and deploying a firing squad.

But the 8th Circuit said Arkansas was previously unsuccessful in obtaining barbiturates and that the inhaled anesthesia and nitrogen alternatives have never been used in executions. A firing squad "is allegedly painless only if the volleys are targeted precisely," the 8th Circuit opinion says.

Baker also ruled in her injunction order that Arkansas' execution-viewing policies impeded the prisoners' right to counsel and the courts. However, she signed a joint agreement Monday to revise the policies.

A federal judge's order preventing the execution of an eighth inmate, Jason McGehee, remains in place. After the state Board of Parole recommended clemency for McGehee, a judge ruled that the state could not execute him on his assigned date of April 27 without running afoul of a required review period.

The state has not appealed that order, and Hutchinson has not said whether he will grant a more lenient sentence.

'HERE TO BE A VOICE'

Because of the international attention given the planned executions, more than a dozen media vans and cars gathered in a parking lot at the Cummins unit Monday, representing outlets including the BBC, Al-Jazeera and The New York Times along with media in Arkansas.

At Cummins' gate, Deputy Warden James Gibson warned members of the media that fire ants were rampant in the two separate areas for protesters marked off with yellow safety tape.

He pointed to the area for those who favor the death penalty and said, "So far no one has shown up."

Gibson then nodded to the other yellow-taped area in front of him, next to the road.

"Only got two of them there," said Gibson, who is deputy warden of the state's prison unit in Malvern.

Standing in blue shirts with the logo "Arkansas Abolish the Death Penalty," Abraham Bonowitz, 50, of Columbus, Ohio, and Randy Gardner, 58, of Salt Lake City paced back and forth on the grass.

Bonowitz, co-founder of Death Penalty Action, based in New York, said he will remain in the state until the executions have been called off or are completed.

"I'm simply here to be a voice," Bonowitz said.

He said his problem with the death penalty is that there is no equal justice under the law because it is skewed by race, gender and socioeconomic factors. He has sympathy for the victims' families but said emotional closure will not be found by executing the perpetrators.

"The victims are a minor sideshow in this circus Arkansas has created in the eyes of the world," Bonowitz said.

For Gardner, the fight is personal.

On June 18, 2010, at a Utah prison, his younger brother, Ronnie Lee Gardner, became the last man in the United States to be executed by firing squad. He had spent 25 years on death row before his death.

At an October 1984 court hearing for killing a man during a Salt Lake City robbery, Ronnie Gardner fatally shot attorney Michael Burdell during an attempted escape.

Randy Gardner winced when asked about his brother's victims.

"I feel terrible for the victims," Randy Gardner said. "But I'm pissed at the government for doing the same thing."

Stacey Johnson and Ledell Lee are scheduled for execution Thursday, and Jack Jones and Marcel Williams are scheduled for Monday. Kenneth Williams is scheduled for April 27.

Information for this article was contributed by John Moritz, Jeannie Roberts and Hunter Field of the Arkansas Democrat-Gazette.

Metro on 04/18/2017