Attorneys argue over need, ability to use lethal gas in Columbia death penalty case

A Columbia man on death row for two decades sought an untried method of execution in federal court on Wednesday.

Attorneys for Ernest Lee Johnson argued in federal appeals court that lethal gas, instead of lethal injection, should be used to kill him, claiming the injection would cause painful seizures that amount to cruel and unusual punishment. A federal district judge dismissed Johnson’s petition last year over the issue, and Johnson appealed it the Eighth Circuit.

Johnson was first sentenced to death in 1995 for murdering Mabel Scruggs, Mary Bratcher and Fred Jones at a convenience store on Ballenger Lane the year prior. Two juries upheld that decision after higher courts reversed the decisions.

The U.S. Supreme Court delayed Johnson’s death hours before his execution in Nov. 2015, claiming the Eighth Circuit Court of Appeals didn’t properly hear the case. Johnson’s case was sent back to the district level, where he has attempted to persuade judges to order lethal gas be used in his execution.

Jeremy Weis, one of the attorneys representing Johnson, said a doctor’s examination of Johnson proved pentobarbital posed a “significant” risk of causing painful seizures due to a brain surgery he had in 2008. Judges questioned Dr. Joel Zivot’s affidavit, saying it did not meet the legal standard that cruel and unusual punishment was a “likely or very likely” result of the injection.

“Those are legal terms, and not necessarily medical terms,” Weis said. “He’s using medical terminology. The legal terms are what the court has used in terms of sure or very likely.”

Weis said the state could use nitrogen hypoxia instead. An inmate would have a hood secured over their head and nitrogen gas pumped into it, suffocating them. Oklahoma recently approved the method for use, and began developing policies to begin conducting executions with it.

“The things to implement it are easily available,” Weis said. “Nitrogen gas is an inert gas that is available on the open market, and the use of a hood or a mask would allow for a simple process.”

A person must prove an alternate method of execution is feasible and readily implementable, according to a Supreme Court decision. Assistant Attorney General Gregory Goodwin argued nitrogen hypoxia met neither standard. Oklahoma’s own study of the method pointed out problems.

“Even a small amount of oxygen that enters the environment has a serious chance to disrupt the entire execution,” Goodwin said.