A federal appeals panel has struck down a lower court’s temporary injunction against Mississippi’s efforts to execute a man found guilty of murdering a Metairie-raised woman in 1976.
The 5th Circuit Court of Appeals panel ruled Wednesday that a U.S. district judge in Mississippi should not have granted the plaintiffs an injunction in a case contesting whether one of the drugs used in the state’s lethal injection process conforms to state law.
One of those plaintiffs is Richard Gerald Jordan, who was convicted 40 years ago of kidnapping Edwina Marter from her Gulfport home. Jordan took Marter, who was raised in Metairie, to extract a ransom from her husband, but Jordan shot her in the back of the head when she tried to escape in DeSoto National Forest.
At 69, Jordan is the longest-serving inmate on Mississippi’s death row. He has been given the death penalty four times, having successfully challenged the first three convictions in court.
In his latest challenge, backed by the MacArthur Justice Center in New Orleans, Jordan and two other inmates say the first drug in a three-drug cocktail that Mississippi now uses for lethal injections is not an “ultra short-acting” barbiturate, as required by state law.
In August, U.S. District Judge Henry Wingate, of Jackson, Mississippi, granted an injunction blocking the execution based on one of three objections raised by the plaintiffs.
The 5th Circuit ruling said Mississippi’s sovereign immunity prevents a federal court from issuing an injunction against state officials solely to require them to adhere to state law. There must be a federal provision or constitutional issue at stake.
Jordan and his fellow plaintiffs say their constitutional right to due process is being violated through the use of the illegal drug. The three-judge appeals panel, however, found that the plaintiffs failed to meet the legal standard to warrant the injunction, handing the matter back to Wingate.
“Plaintiffs have not demonstrated a substantial likelihood of success on the merits of their claims because they have not established a liberty interest in the enforcement of (the law) and because they have not shown that Mississippi’s alleged deviation (from it) would ‘shock the conscience,’ ” wrote 5th Circuit Judge Jennifer Walker Elrod.
Jim Craig, co-director of the MacArthur Justice Center, said in a statement after the ruling was issued that it has “long been established” that the first drugs used by Mississippi in lethal injections — either midazolam or a compounded pentobarbital — have been known to not properly anesthetize a condemned prisoner, causing him to “suffer from the tortuous effects of the second and third drugs.”
Craig wrote that the MacArthur Center is hoping Wingate will grant another injunction based on the center’s other two arguments against the use of the drugs, which he said have been at the center of several botched executions that amounted to “chemical torture.”
“We are studying the ruling to determine whether to seek review by the full 5th Circuit and/or the Supreme Court,” he wrote.
Follow Chad Calder on Twitter, @Chad_Calder.