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Arkansas executions set for Thursday, but legal issues loom

Arkansas governor spokesman J.R. Davis speaks after the news that the U.S. Supreme Court stayed the scheduled Monday, April 17, 2017, execution of Don Davis, scuttling efforts to resume capital punishment after nearly 12 years, in Varner, Ark. (AP Photo/John L. Mone)

LITTLE ROCK, Ark. (AP) — Arkansas remains hopeful it can execute five inmates before the end of the month after courts blocked the state from putting two men to death Monday night.

The inmates are fighting their executions on multiple legal fronts, but there are currently no stays in place for five who are set to die this month as the state rushes to beat an expiration date for one of its lethal drugs. The next executions are scheduled for Thursday.

Here is a look at the legal landscape as Arkansas pushes forward with its execution plan:

IS ARKANSAS CLEARED TO MOVE AHEAD?

At this point, yes, in five of the executions: for Stacey Johnson and Ledell Lee, scheduled to die Thursday night; for Jack Jones and Marcel Williams, set for lethal injection April 24; and for Kenneth Williams, scheduled for execution April 27.

Bruce Ward and Don Davis, who were to be executed Monday night, won stays from the Arkansas Supreme Court and the state appealed to the U.S. Supreme Court in the case of Davis but not Ward. The U.S. Supreme Court then opted not to lift the stay for Davis.

A spokesman for Arkansas Attorney General Leslie Rutledge said Tuesday that the state will make its arguments in the cases involving Davis and Ward before the state Supreme Court but will follow the current briefing schedule that the court has set, with deadlines into late May. Under that timeline, the state would be unable to execute Ward and Davis before its supply of midazolam expires April 30.

An eighth inmate, Jason McGehee, previously won a stay from a federal judge regarding his clemency schedule, and Arkansas has not appealed that ruling.

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WHAT ARE THE INMATES’ ARGUMENTS?

There are many. The two set for execution Thursday, Lee and Johnson, both want more DNA testing in hopes of proving their innocence, though a Pulaski County judge on Tuesday rejected Lee’s request for the enhanced tests.

Lee also wants his federal case reopened, with his attorneys arguing that Lee has fetal alcohol syndrome, brain damage and intellectual disability. Lee also argues that his trial judge had an affair with an assistant prosecutor and that he was previously represented by a lawyer who showed up drunk at court.

Marcel Williams argues that his execution could be especially painful because he is obese and has diabetes.

The legal issue that halted Monday’s executions for Ward and Davis hinged on a separate, broader case pending before the U.S. Supreme Court concerning a defendant’s access to independent experts, and attorneys say the justices’ ruling could potentially affect the inmates’ criminal convictions. That case will be argued next week.

Ward also had argued that he shouldn’t be executed because of his mental capacity. His attorneys have said he is a diagnosed schizophrenic.

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WHAT ABOUT THE FEDERAL JUDGE’S DECISION BLOCKING THE EXECUTIONS?

A 101-page order that a federal judge filed early Saturday to block the executions was reversed Monday by the 8th U.S. Circuit Court of Appeals.

The court noted that the inmates “have a long history of filing and dismissing claims to manipulate the judicial process and prevent Arkansas from carrying out their executions.”

In her order, U.S. District Judge Kristine Baker flagged two issues: the use of the midazolam and inmates’ access to their attorneys on the days of their executions.

The state filed an amended plan Monday that grants attorneys for the inmates more phone access while on prison grounds.

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WILL THE U.S. SUPREME COURT INTERVENE?

Justices rarely upend a lower court order in death penalty cases. That’s true whether it’s the inmate who is seeking an eleventh-hour reprieve or the state that wants to put a prisoner to death.

The court may be even more reluctant to do so now with new Justice Neil Gorsuch on board, especially because Gorsuch could be thrust into the uncomfortable position of taking a decisive and public death penalty stand very early in his tenure.

It takes five votes to get most things done at the court, including imposing or lifting a stay of execution.

The justices often split on death penalty issues, with the conservative justices more willing to allow an execution to take place and the liberal justices more inclined to side with inmates.

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WHAT ARE THE DRUG COMPANIES DOING?

A handful of drug companies are telling Arkansas that they don’t want their products used to kill inmates. Two pharmaceutical companies filed a court brief last week asking Baker to block Arkansas from using their drugs, but Baker did not rule on that issue.

The medical supplier McKesson Corp. made a similar request in a separate case before a Pulaski County circuit judge, which he granted. But the Arkansas Supreme Court vacated that order after the judge, Wendell Griffen, was photographed participating in an anti-death penalty protest on the same day he issued his ruling.

McKesson refiled its suit Tuesday before a newly assigned judge.

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Associated Press writer Mark Sherman contributed to this report from Washington.

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Follow Jill Bleed on Twitter at www.twitter.com/jzbleed

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