Federal judge denies restraining order for Ernest L. Johnson

A federal judge rejected a Columbia man’s request for a different method of execution.

Judge Greg Kays’ judgement Tuesday denies Ernest L. Johnson’s request for a temporary restraining order against the Missouri Department of Corrections, just a week before his execution for a 1994 triple murder in Columbia. Johnson’s attorneys claimed that the drugs used in Missouri’s lethal injection protocol, midazolam and pentobarbital, would cause “violent and uncontrollable seizures” due to the remnants and scarring of a brain tumor.

Jeremy Weis, the Kansas City-based attorney for Johnson, asked instead that Johnson receive lethal gas, the only other legal form of execution in Missouri. However, the Department of Corrections does not have an operable lethal gas chamber. Judge Kays wrote that Johnson needed to identify a “readily implemented” form of execution for the court to grant him the restraining order.

David Owen, a spokesman for the state’s Department of Corrections, said Lloyd Anderson was the last inmate to receive an execution in Missouri using lethal gas in January 1965.

“Simply because Missouri law authorizes the use of lethal gas for executions does not mean that the State is anywhere near prepared to actually use lethal gas for executions,” Judge Kays wrote.

The judge’s decision also claims Johnson “sat on his rights for some time” to file the order based on his brain tumor, which doctors found in 2008. Weis’ initial petition claims Dr. Joel Zivot, an anesthesiologist at Emory University, completed his examination in August 2015, which ruled “that the administration of Midazolam and Pentobarbital have the real and significant potential of promoting a seizure.”

Johnson’s execution is still set for November 3.