Columbia death penalty case starts again in court

Arguments in a Missouri death penalty case questioning the state’s use of lethal injection started again in district court Monday, and offered a new, potential, method of execution.

Attorneys for Ernest Lee Johnson, sentenced to death for the 1994 murders of three people at a Columbia convenience store, filed their opening argument in federal court. Johnson’s case made it to the U.S. Supreme Court before justices sent it back down to an appellate court for review, just hours before Johnson’s execution in November 2015. That court also sent it back to the district level, claiming that court needed to give a final ruling on the matter before it had any authority over it.

Kansas City-based lawyers Brian Gaddy and Jeremy Weis argued then, and again on Monday, that Missouri’s use of pentobarbital would qualify as “cruel and unusual punishment” when applied to Johnson. A 2008 brain surgery to remove a tumor left scar tissue, noticed during an MRI done in 2011. Pentobarbital would cause Johnson “violent and uncontrollable seizures,” they argue, based on a 2015 examination by Dr. Joel Zivot of Emory University.

Monday’s filing suggests the use of “nitrogen-induced hypoxia,” where a person would conceal their face with a hood or mask, and fill it with nitrogen. In 2015, Oklahoma became the first state to approve the use of this method, while the courts reviewed that state’s use of lethal injection. A state-commissioned review panel there found it to be a more “humane” method of execution, rendering the person unconscious within twenty seconds and “can assure a quick and painless death of the offender.” However, no state has ever used nitrogen-induced hypoxia as a method of execution, which means there is little medical research surrounding it.

“The available literature regarding the nitrogen gas method of execution strongly suggests that the subject will have no allergic reaction to the gas, will experience a loss of consciousness, and will suffer no pain,” Gaddy wrote.

While the Missouri Attorney General’s Office doubts that pentobarbital would cause such a reaction, both sides have also argued whether or not Johnson should instead receive lethal gas. It is the only other legal form of capital punishment in the state, but has not been used since 1965, and Missouri does not have an operable gas chamber. The attorney general argued that Johnson’s lawyers have never proved lethal gas would cause a less painful death, nor how the state would carry it out without a gas chamber currently in place.

The issue of Johnson’s death has lasted for the two decades. A jury first convicted him to death for the killings of Mabel Scruggs, Mary Bratcher and Fred Jones at the old Casey’s General Store at Ballenger Lane and Rice Road. Johnson entered the store while the three were closing it on a February night, killing them with a hammer in an attempt to rob the store. Witnesses at trial claimed Johnson was trying to rob the store to satisfy his cocaine addiction, having just recently been paroled and seeking the help of a rehabilitation facility. Various courts overturned the death penalty two times in Johnson’s case, a Pettis County jury last convicting him to the death in 2006.

The attorney general’s office has until August 22 to respond.