Time could be running out for a former Richmond gang member who murdered seven people in 1992 and is scheduled to be executed Thursday in Indiana.
However, as of late Wednesday, a stay of execution was still in place for Cory Johnson, 52, who has COVID-19, and fellow death row inmate Dustin Higgs, 48, who is set to die Friday and who also has the virus. Johnson had at least one other matter pending in court as of Wednesday, as well as a clemency petition before President Donald Trump.
On Tuesday, a federal judge in Washington granted the stay for Johnson and Higgs until at least March, citing the possibility that a lethal injection chemical could lead to cruel and unusual punishment due to their lungs being damaged from COVID-19.
That ruling was appealed by the government to the U.S. District of Columbia Court of Appeals on Tuesday.
Government lawyers argued that “the court’s previous five protocol-based injunctions have all been vacated by either this Court or the Supreme Court, and this unfounded and untimely last-minute injunction should be vacated as well.”
The appeals court had not issued a ruling as of late Wednesday.
After a 17-year lull in executions, the Trump administration resumed carrying out death sentences last year. Eleven have been carried out thus far, the most recent early Wednesday when Lisa Montgomery, 52, died by injection.
With Trump leaving office next week, Johnson’s and Higgs’ lives could be spared if the stay prompted by COVID-19 remains in place, because President-elect Joe Biden opposes the death penalty.
Johnson lost another bid for a stay Wednesday when, in a 2-1 ruling, a three-judge panel of the Richmond-based 4th U.S. Circuit Court of Appeals rejected a stay request that cited what Johnson’s lawyers and their expert evaluators said was his intellectual disability and other issues.
In rejecting the request, Judge J. Harvie Wilkinson III wrote: “I vote to deny a stay of execution and to deny all the subsidiary motions directed toward that singular end. The Supreme Court has warned against this flurry of last-minute motions designed to achieve a stay by virtue of allowing the courts severely limited consideration time.”
“It is disheartening to say the least to watch the Supreme Court’s warnings disregarded,” Wilkinson wrote. “Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.”
After the ruling, Johnson’s lawyer, Donald Salzman, said in a statement that “Johnson is a person with intellectual disability, a fact documented in mountains of evidence including the opinions of nationally renowned experts, IQ scores as low as 69, and records compiled throughout Corey’s lifetime of struggles to learn and function.”
Salzman added: “It would be unconscionable to execute him without allowing a full evidentiary hearing so that a court can consider and decide whether he is constitutionally ineligible for the death penalty.”
On Tuesday, U.S. District Judge David J. Novak tossed out a claim by Johnson that he must be executed in a Virginia prison as he was originally sentenced and not at the Federal Correctional Complex in Terre Haute, Ind., where federal executions are conducted.
Johnson’s lawyer argued that under the sentence imposed by U.S. District Judge James R. Spencer in 1993 and his implementation order of 1996, Johnson must be put to death by the Virginia Department of Corrections. At the time, the federal government did not have a facility or protocol to carry out death sentences.
Spencer modified Johnson’s sentence in 2005 after the federal government built its own execution chamber, and Johnson contends he lacked the authority to do so.
Novak, however, noted among other things that Johnson waited 15 years to object to the 2005 change. “Accordingly, [Johnson] has forfeited his challenge to the Court’s authority to enter the Execution Order,” concluded Novak’s order.
Johnson then appealed Novak’s ruling to the 4th U.S. Circuit Court of Appeals.
Montgomery, the first woman executed by the federal government since 1953, was executed after the U.S. Supreme Court lifted a stay of execution granted by the U.S. District of Columbia Court of Appeals in her case.
In 2004, Montgomery strangled a woman to death in Missouri and cut her open to take the victim’s unborn baby, who lived and who Montgomery claimed was her own baby.
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