The execution of Ernest Lee Johnson did not happen last night and might not happen before the warrant for his execution expires Wednesday night.
The U.S. Supreme Court has granted a stay in Johnson’s case and sent back to the 8th Circuit Court of Appeals his appeal based on his claim that the lethal injection of pentobarbital presents a risk of violent seizures that would violate his rights against cruel and unusual punishment. The 8th Circuit dismissed that appeal for Johnson’s failure to state a claim. The Supreme Court has required the 8th Circuit to decide whether that should have been dismissed or whether the case should have been allowed to proceed.
The case could, then, be sent back to a lower court, and then have to work its way back up to the U.S. Supreme Court. In the meantime, Johnson’s attorneys could file additional motions, setting more proceedings in motion.
The death warrant issued by the Missouri Supreme Court is good for 24-hours beginning at 6 p.m. Tuesday night. Once it expires, the execution could not proceed until a new warrant is issued.
Johnson faces three death sentences for killing three people with a hammer during the robbery of a Columbia Casey’s store in 1994.
Johnson, 55, was sentenced to death for three counts of first-degree murder for killing Mary Bratcher, Mable Scruggs, and Fred Jones. He had also shot one victim in the face and stabbed another 10 times in the hand with a screwdriver before the fatal attacks with the hammer.
He was linked to the crime by shoes that matched bloody footprints at the scene, money, checks, and a cash register receipt from the store, and bloody clothing. Johnson in recent appeals of his sentence did not dispute his guilt in the murders.
Johnson’s attorneys argued in recent weeks that he should not be executed using pentobarbital because it would pose a risk of violent and uncontrollable seizures in him, as a result of scar tissue and other conditions that remained after a 2008 surgery to remove a brain tumor. They argued that lethal gas, still a legal method of execution in Missouri but unused since 1965, would pose less risk of pain to Johnson.
Alternately his attorneys argued that Johnson suffered from intellectual disability since childhood, and as such his execution would violate the constitution.