State urges court to let executions proceed

Drugs are FDA approved, Attorney General says in filing on order

LITTLE ROCK — The state appealed on Tuesday to the Arkansas Supreme Court a circuit judge’s recent decision to halt eight executions originally set to begin next week.

The notice came less than two hours after Pulaski County Circuit Judge Wendell Griffen denied a request from the state to lift the stay on the inmate executions. Griffen also shot down the state’s request for an expedited trial for the lawsuit filed in June by nine death-row inmates.

“I am seeking immediate review of the lower court’s actions from the Arkansas Supreme Court,” Arkansas Attorney General Leslie Rutledge said in an email.

The appeal as well as an addendum requesting an expedited response to the appeal appeared late Tuesday on the Supreme Court’s docket.

Jeff Rosenzweig — the attorney for the nine inmates — declined comment when contacted. Correction Department spokeswoman Cathy Frye also declined to comment and referred all questions to the attorney general’s office, whose office acts as the system’s legal counsel.

Rutledge said in Tuesday’s appeal notice the temporary halt to the executions ordered Monday by Griffen is “in practice issuing a long-term injunction under the guise of a temporary restraining order.”

Griffen had set a March 1-2 trial in the case. In the state’s motion filed Monday to dismiss the temporary injunction, lawyers said they and their witnesses were ready for trial. They suggested court dates of Friday, Monday, Tuesday or Oct. 21. Inmates Bruce Ward of Little Rock and Don Davis of Rogers were scheduled to die by lethal injection Oct. 21.

In Tuesday’s order denying the state’s motion to dissolve the temporary restraining order, Griffen ruled the state violated Rule 11 of the Arkansas Rules of Civil Procedures — which, among other things, requires facts be backed up by supporting evidence, pleadings be signed, and the court filings not be used to harass, cause unnecessary delay, or needlessly increase the cost of litigation. The breach brings sanctions including a default judgment against the agency or monetary penalties.

The state’s argument for dissolving a temporary restraining order that placed eight scheduled executions on hold was “categorically false,” Griffen wrote in the response.

The state has 14 days to submit a written response as to why it feels the motion to dissolve the order doesn’t contradict the civil rule.

Lawyers with the attorney general’s office argued Monday the temporary order was issued “without notice.”

Griffen took issue with the claim in his response Tuesday, saying the state’s motion “must be denied because it is factually groundless” and “unwarranted” because of existing law “or a good faith argument for extension, modification, or reversal of existing law.”

The state has known since June 29, when the lawsuit was filed, the inmates were seeking an injunction to halt the executions, Griffen said in the brief. He added the state’s subsequent court appearance and multiple case submissions prove the state was aware an injunction could be ordered.

“Defendants’ argument that the temporary restraining order that stayed Plaintiffs’ executions pending a preliminary injunction hearing was issued ‘without notice’ is more than incorrect. It is manifestly untrue,” Griffen said in the ruling.

Late Monday, Rutledge also filed a motion requesting clarification from Griffen’s order the state prison system release information by Oct. 21 about its execution drugs, including unredacted package inserts, shipping labels, laboratory test results, and product warnings.

The eight inmates scheduled for execution, as well as inmate Ledell Lee, filed the lawsuit to force the Correction Department to reveal its source when purchasing execution drugs. The information is necessary to determine whether the execution causes torture, a constitutional violation, the inmates’ lawyers argued in the lawsuit.

Rutledge said in Monday’s clarification request the state doesn’t have “possession or control” over any shipping labels or laboratory test results.

“Defendants request that the Court clarify that they are under no duty to produce materials that they do not have,” Rutledge said in the motion.

The eight inmates are the only ones of the 34 on death row who have exhausted all their legal appeals. They are Ward, 58; Davis, 52; Terrick Nooner, 44; Stacey Johnson, 45; Jack Jones Jr., 51; Marcell Williams, 44; Jason McGehee, 39; and Kenneth D. Williams, 36.