COLUMBIA, Mo., Nov. 2 (UPI) -- Attorneys for a convicted Missouri killer who's set to be put to death Tuesday asked the U.S. Supreme Court to spare their client's life, arguing his brain tumor could make the execution unlawfully painful.
Ernest Lee Johnson, who killed three people at a Columbia, Mo., convenience store in 1994, has exhausted all appeals and is now down to his final two lifelines -- an order from the Supreme Court or Missouri Gov. Jay Nixon -- less than 24 hours before his scheduled execution.
Monday, Missouri's Supreme Court rejected a request by Johnson's attorneys that a judge consider qualifying the death row inmate as mentally disabled -- which would make him legally ineligible for the death penalty.
Johnson's attorneys are now asking for a hearing before the U.S. Supreme Court -- arguing the Eighth Circuit Court of Appeals erred in refusing their appeal Friday.
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Specifically, they contend the lethal injection drugs used by Missouri -- midazolam and pentobarbital -- pose a "a substantial and unjustifiable risk" of inflicting violent and painful seizures during the execution. That risk, they argue, is aggravated by a slow-growing brain tumor in Johnson's head and scarring from a 2008 surgery that removed part of it.
"If left to stand, the lower court opinions in this case create an impossible burden on a condemned inmate to allege an alternative method of execution," defense attorney Brian Gaddy wrote in the appeal to Justice Samuel Alito.
Defense attorney Jeremy Weis argued to the state supreme court that such a harmful execution would violate Johnson's constitutional right against cruel and unusual punishment.
Weis also argued that administering lethal gas instead of intravenous drugs would minimize the risk of pain. However, as that method hasn't been used in the United States since 1999, Missouri no longer has a functional gas chamber.
Missouri Attorney General Chris Koster said Monday that Johnson's team has done nothing to prove that the lethal injection poses a definitive risk.
"The court of appeals held Johnson's complaint to the same standard as any other complaint filed in federal district court," Spillane said. "Those holdings are not error."
Johnson, 55, was convicted and sentenced to death for killing two middle-aged women and a man with a hammer and screwdriver. Prosecutors argued that Johnson's addiction to crack cocaine led him to rob the convenience store and kill the victims.
Tuesday's execution is scheduled for 6 p.m. CST. If it proceeds, Johnson will be Missouri's seventh death row inmate executed this year.
