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Eighth Circuit Denies Stay of Execution Pending Appeal Over Execution Drug

On October 30, 2015, the Eighth Circuit court of appeals denied Missouri death row prisoner Ernest Johnson a stay pending appeal of his challenge to the type of drug being used to execute prisoners in Missouri.

Johnson underwent craniotomy surgery in 2008 to remove a brain tumor. A portion of the tumor remained in his brain and the surgery caused scarring and other complications so that he periodically experiences seizures. Johnson believed pentobarbital, the execution drug in Missouri, could trigger a seizure. For that reason, be asked to be executed by lethal gas, as an alternative method of execution permitted by Mo. Rev. Stat. § 546.720.1.

Johnson filed a federal lawsuit seeking temporary injunctive relief requiring Missouri to use lethal eas in executing him. The court denied relief and dismissed the complaint, stating that Johnson had not shown there was a readily implementable alternative method of execution. Johnson appealed and filed for a stay pending appeal.

Holding that the "varies, hypotheticals, and speculation" in Johnson's pleadings and failure to identify "a feasible and readily implementable alternative execution method" showed he did not have a significant possibility of success on the merits, the Eighth Circuit denied the stay. See: Johnson v. Lombardi, 8th Cir., No. 15-3420.


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Related legal case

Johnson v. Lombardi