LITTLE ROCK — Lawyers for the state of Arkansas said Thursday that two men who won temporary stays during a flurry of executions last spring never reached the minimum standards necessary to trigger aid from mental health professionals throughout their trials.
Arkansas intended to kill Bruce Ward and Don Davis in a double execution last April, but the men won stays after claiming independent psychiatrists should have reviewed their files and helped develop trial strategies. At the state Supreme Court on Thursday, lawyers for the state said the pair never met the threshold that would have required the assistance.
Arkansas Solicitor General Lee Rudofsky told the seven-judge panel that the aid was only required if a preliminary mental health review showed that the men had issues at the time of their trials or at the time they committed their crimes. He said the lawyers for the inmates were “sandbagging” the court in their arguments, hoping the panel “misses the point.”
In arguments over Davis’ claim, state lawyer Kelly Fields said Davis never reached the standard, either.
“Two exams determined that he did not meet the threshold to qualify for this assistance,” Fields said.
The inmates had pointed to a 1985 U.S. Supreme Court decision that said independent mental health experts must help indigent defendants who face the death penalty — even to the point of helping them develop plans for their trials and sentencing phases. The U.S. Supreme Court reviewed that case last spring, but didn’t change it substantially.
Most mental health reviews are performed at the Arkansas State Hospital. Lawyers for Ward and Davis said the evaluations were not independent enough to withstand federal court requirements.
“This court for 30 years … has wrongly interpreted” the requirement, lawyer Scott Braden said, arguing for Ward.
April Golden, lawyer for Davis, said Davis’ attention deficit disorder was noted in an evaluation and should have been explored deeply, but Fields said Davis’ walking his victim through a house looking for valuables went beyond hyperactivity.
Besides calling off Ward’s and Davis’ executions as the U.S. Supreme Court looked into whether criminal defendants are entitled to independent mental health experts, Arkansas justices also stopped the lethal injection in November of another inmate, Jack Greene. They called off Greene’s to consider whether Arkansas’ prison director is an adequate judge of the inmate’s mental health.
Ward, Davis and Greene are the closest to exhausting their appeals following the executions of four prisoners in an eight-day period last April. Documents are due before the state Supreme Court next month in the case of Greene.
Gov. Asa Hutchinson’s office said it wouldn’t speculate on how quickly he might set an execution date if the men lose their appeals. The attorney general’s office said only that it would give the governor the appropriate notice if the men’s status changes.
Separately, Ward is making a claim similar to Greene’s. Both Ward and Greene say the prison director should not stand as the men’s “arbiter of sanity,” as is allowed under state law. State lawyers call her a “neutral state officer.”
Defense lawyers said Ward has a lifelong history of severe mental illness, including schizophrenia, and Davis has an IQ score indicating an intellectual disability.
Greene’s lawyers call him delusional. He attends court hearings with rolled up tissues stuck in his nose and ears.
It’s possible, but unlikely, that Arkansas could execute anyone before its current full batch of lethal injection drugs expires March 1. After that date, 75 vials of the muscle relaxant vecuronium bromide must be tossed out. The state uses five vials per execution.
Arkansas uses a three-drug lethal injection process. The other drugs are potassium chloride and midazolam. Midazolam sedates inmates, vecuronium bromide stops their lungs and potassium chloride stops their hearts.
The state’s potassium chloride supply expires Aug. 31 and its midazolam is good through Jan. 31, 2019.
Arkansas last spring rushed to put inmates to death before their existing supply of midazolam expired April 30. They had scheduled eight executions in an 11-day period, but Ward and Davis received stays, one inmate was given more time to raise a claim of innocence and another won clemency.