Appeals court hears arguments in Columbia death penalty case

Missouri’s method of execution and the timeliness of the argument made its way to the 28th floor of the Thomas Eagleton Courthouse Wednesday afternoon.

A three judge panel of the U.S. 8th Circuit Court of Appeals will decide whether Ernest Lee Johnson, convicted of killing three people in northeast Columbia in 1994, should have his case sent back to Missouri’s Western District court, or go through with an execution by lethal injection. The U.S. Supreme Court issued a stay in Johnson’s execution the day it was set to happen in November.

The Court cited Johnson’s lawyers’ claim that lethal injection would cause “severe and uncontrollable” seizures. According to a medical affidavit filed in 2015, Dr. Joel Zivot said scar tissue that formed after a 2008 brain surgery would cause those seizures when reacting to pentobarbital, the single drug used in Missouri’s lethal injection.

Judge Lavenski Smith, flanked by Judges Steven Colloton and Raymond Gruender, asked about the use of lethal gas. Johnson’s attorney Brian Gaddy said that since the state allows for its use by law, it constitutes a “feasible” and “readily implementable” alternative – the legal bar established by the Supreme Court.

“A lot’s been made of the gas chamber,” Gaddy told ABC 17 News after the hearing. “I think technology has advanced to where you may not need an official gas chamber, and those are items that we hope to litigate of the case is sent back down to the district court.”

Johnson murdered Mabel Scruggs, Mary Bratcher and Fred Jones in February 1994, as the three closed the Casey’s General Store at the corner of Rice Road and Ballenger Lane. Johnson was convicted of the murders the next year, but various courts overturned the death penalty sentence. A Pettis County jury last upheld that punishment in 2006.

Assistant Attorney General Gregory Goodwin said Johnson’s attorneys have never proved that the chemicals used in lethal gas would not cause the same result they allege with pentobarbital. Johnson could also not prove that lethal gas was a “readily implementable” form of execution, simply because state law allowed it.

Missouri has not conducted an execution with the gas chamber since 1965. Department of Corrections spokesperson David Owen told ABC 17 News the state does not currently have an operational gas chamber.

Goodwin also claimed Johnson filed his petition for a new form of execution too late. Both sides agreed that the statute of limitations for such a claim is five years. Goodwin said the brain surgery in 2008 started the “clock,” but Gaddy rebutted to say the discovery of the scar tissue in a follow-up MRI in 2011 would have given Johnson any claim under the Eighth Amendment.

The 8th Circuit Court of Appeals does not have timetable on handing down an opinion.