Court denies Columbia man’s attempt to throw out death penalty
A federal court has denied another attempt from a Columbia man to throw out his impending execution.
Judge Greg Kays dismissed Ernest L. Johnson’s petition in the Western District of Missouri on Monday. It was the second time since an appellate court sent Johnson’s case back to the district level that Judge Kays dismissed the issue. Kays first dismissed Johnson’s lawsuit in September without prejudice, which allowed Johnson to file a new complaint.
The U.S. Supreme Court stopped Johnson’s execution just hours before he was set to die from lethal injection. Various courts have upheld the death penalty for Johnson, convicted in 1995 for killing Mabel Scruggs, Fred Jones and Mary Bratcher at a convenience store on the corner of Rice Road and Ballenger Lane.
Kays’ decision said Johnson once more failed to meet the legal standard needed to claim lethal injection would amount to cruel and unusual punishment. Johnson’s lawyers, Brian Gaddy and Jeremy Weis, once more relied on Dr. Joel Zivot’s analysis of Johnson’s brain. A 2011 MRI showed scar tissue remaining from the removal of a tumor three years earlier. Zivot said Johnson could suffer a “significant” seizure when given pentobarbital, Missouri’s drug used in executions.
Kays wrote that the evidence presented still didn’t show that it was “sure or very likely” that Johnson would suffer a painful seizure during the injection.
“While a ‘significant’ risk is noteworthy, it does not mean the same thing as ‘sure or very likely,'” Kays wrote.
The judge also denied the argument that “nitrogen-induced hypoxia” could be used instead of pentobarbital. The method has never been used in the U.S., but Missouri still allows use of lethal gas. Gaddy and Weis claimed it would be a more “humane” method of execution, but Kays wrote that they did not meet the legal standard that it was “capable of being readily implemented.” The state would need to develop new protocols, Kays said, and train Department of Corrections staff in that method.
Kays dismissed the suit without prejudice, meaning Johnson could file a new petition to re-argue his case. However, the statute of limitations may bar him from doing so. Inmates have five years from the time they become aware that an execution would be “cruel and unusual” to ask a court to toss out the particular method the state plans to use. For Johnson, that would be “at least” 2011, when the MRI was performed, according to Kays.
