A panel of federal appellate judges in New Orleans heard arguments Wednesday on whether they should leave in place a lower court’s preliminary injunction delaying the execution of a man on Mississippi’s death row for the murder of a Metairie-raised woman nearly 40 years ago.
An attorney arguing in support of the ruling issued in August by U.S. District Judge Henry Wingate, of Jackson, Mississippi, said serious doubts persist on whether Mississippi’s lethal injection protocol is legal under the state’s own laws.
However, an attorney representing the Mississippi Department of Corrections insisted that the protocol was legal. He urged 5th U.S. Circuit Court of Appeals Judges Patrick Higginbotham, Priscilla Owen and Jennifer Elrod to vacate the injunction.
At the heart of the case is a federal lawsuit filed in Mississippi by two state prisoners awaiting execution. One of them, Richard Gerald Jordan, 69, was found guilty in 1976 of kidnapping Metairie native Edwina Marter and fatally shooting her earlier that year.
The suit asserts that Mississippi law requires the first of three drugs administered during a lethal injection to be a type of anesthetic known as an “ultra short-acting” barbiturate or something similar. However, Mississippi had indicated the first drug in the lethal injection it intended to give Jordan was midazolam, which is not a barbiturate, according to the death row inmate’s lead attorney, Jim Craig, co-director of the MacArthur Justice Center.
The attorney for Mississippi’s DOC, Paul Barnes, countered that the U.S. Supreme Court recently found it was constitutional to use midazolam in lethal injections. He also said Mississippi wasn’t using midazolam when Jordan and his co-plaintiff sued over the state’s lethal injection protocol in April. At the time, it was using pentobarbital, a barbiturate that became unavailable when the supplier cut off use of the product for executions.
“(Jordan) has been on death row for 40 years. Every day this injunction is in place in an injury to the state,” Barnes said. “Victims’ families are entitled to some justice.”
Craig countered that merely plugging midazolam into its existing protocol was not enough for Mississippi to ensure its compliance with constitutional mandates against cruel and unusual punishment. As for pentobarbital, he said it is an “intermediate-acting” barbiturate — not the ultra short-acting kind Mississippi law mentions.
Higginbotham, Owen and Elrod spent a portion of the hearing quizzing Craig about whether there had been evidence establishing that neither midazolam nor pentobarbital is similar to a short-acting barbiturate.
Craig said there was such evidence for pentobarbital but not for midazolam. That is because the night before a hearing that Wingate scheduled for late July, the state abruptly served notice that it was altering its protocol to implement midazolam and simultaneously requested that the Mississippi Supreme Court set an execution date for Jordan within 30 days, he said.
Craig said getting more time to build a case against midazolam wasn’t possible.
Wingate then ruled in late August that no execution should be scheduled until Jordan’s suit was resolved, and Mississippi appealed. A ruling on Wednesday’s arguments could come in the next month, Craig said.