US appeals court rules two murderers with COVID will be executed

US appeals court rules that two convicted murderers on federal death row who BOTH have coronavirus WILL be executed in last days of Trump presidency

  • US Court of Appeals for the District of Columbia Circuit voted 2-1 to overturn lower court’s ruling delaying executions of Corey Johnson and Dustin Higgs
  • Johnson and Higgs’ attorneys asked for stays of execution so the death row inmates could recover from COVID-19 
  • They argued inmates’ coronavirus-damaged lungs would result in suffering tantamount of torture 
  • Johnson, 52, who was convicted of killing seven people in Virginia in 1992, is scheduled to be put to death at 6pm on Thursday
  • Johnson’s lawyers argue he is intellectually disabled and therefore ineligible to be put to death 
  • Higgs, 48, convicted of masterminding kidnapping and murder of three women in Maryland in 1996, is set to be executed on Friday  

A US appeals court ordered that the last two scheduled federal executions under President Donald Trump’s outgoing administration could proceed on Thursday and Friday, overturning a stay from a lower court delaying them until March to allow the two condemned men to recover from COVID-19.

The US Department of Justice announced last month that Corey Johnson, 52, and Dustin Higgs, 48, had been diagnosed with the coronavirus but that it would proceed with their executions set for 6pm tonight and on Friday. 

Both men, convicted in separate murders, are being held on death row at a federal prison in Terre Haute, Indiana.

A US appeals court ordered that death row inmates Corey Johnson, 52 (left), and Dustin Higgs, 48 (right), be executed on Thursday and Friday, respectively, despite battling COVID-19 

Johnson, who was convicted of killing seven people in Virginia in 1992, is scheduled to be put to death at 6pm on Thursday at the Federal Correctional Complex in Terre Haute, Indiana 

On Tuesday, Judge Tanya Chutkan of the US District Court ordered the executions be delayed until at least March 16 to allow the condemned men to heal, siding with medical experts who said their coronavirus-damaged lungs would result in inordinate suffering if they were to receive lethal injections.

A split panel of judges at US Court of Appeals for the District of Columbia Circuit overturned Chutkan’s stay by a 2-1 vote overnight on Wednesday. 

Lawyers for the two men asked the appeals court to reconsider the ruling by filing a petition on Thursday morning seeking a so-called rehearing en banc.

‘We will ask the full court to step in to reinstate the stay, but it is time for the government to stop carrying out super-spreader executions,’ Shawn Nolan, a federal defender representing Higgs, said in a statement.

Trump, a long-standing advocate of capital punishment, oversaw the resumption of federal executions last summer after a 17-year hiatus as the novel coronavirus continued to spread. Death row inmates, at least two of their lawyers and multiple prison and execution staff have since become ill with COVID-19.

President-elect Joe Biden, a Democrat, will be inaugurated next Wednesday, and says he will seek to abolish the death penalty.

Higgs, 48, was convicted of masterminding the kidnapping and murder of three women in Maryland in 1996

Higgs was convicted of overseeing the kidnapping and murder of three women on the Patuxent Research Refuge in Maryland in 1996. He did not kill anyone himself, which his lawyers have argued is grounds for clemency.

Johnson was convicted of murdering seven people in Virginia in 1992 as part of a drug-trafficking ring. His lawyers say he has an intellectual disability that means it would be unconstitutional to execute him.

Their lawyers, citing medical experts who testified in court, say that their damaged lung tissue would rupture more quickly than usual after lethal doses of pentobarbital, a powerful barbiturate, had been administered.

There could be a period of several minutes in which the men experience drowning as their lungs filled with bloody fluids – a pulmonary edema – before the drug rendered them insensate or killed them, the lawyers argued, calling it a form of torture. 

In their clemency petition, Johnson’s lawyers asked President Trump to commute his death sentence to life in prison. They described a traumatic childhood when he was physically abused by his drug-addicted mother and her boyfriends, abandoned at age 13, then shuffled between residential and institutional facilities until he aged out of the foster care system. 

They cite numerous childhood IQ tests discovered after he was sentenced that place him in the mentally disabled category and say testing during his time in prison shows he can read and write at only an elementary school level. 

‘Allowing Corey to be executed would be a grave miscarriage of justice,’ said Don Salzman, one of Johnson’s attorneys. 

Prosecutors, however, say Johnson has not shown that he is mentally disabled.

‘While rejecting that he has intellectual disabilities that preclude his death sentences, courts have repeatedly and correctly concluded that Johnson’s seven murders were planned to advance his drug trafficking and were not impulsive acts by someone incapable of capable making calculated judgments, and are therefore eligible for the death penalty,’ prosecutors argue in court documents.

A defense psychologist testified during the trial that Johnson’s IQ was measured at 77, above the threshold score of 75 then needed to label someone as intellectually disabled. Johnson’s appellate lawyers say that psychologist was not an expert in intellectual disability and relied on standards that are now outdated.

C.T. Woody Jr., the lead homicide detective on the case, said that during his interrogations of Johnson, he denied any involvement in the killings and said police were trying to frame him because of lies people were telling about him.

‘It did not seem to me that he had any kind of mental problems at all except his viciousness and no respect for human life – none whatsoever,’ Woody said.

Former Assistant US Attorney Howard Vick Jr, one of the prosecutors in the case, said the violence committed by Johnson and his fellow gang members was unmatched at the time. One of the gang’s victims was stabbed 85 times and another was shot 16 times. Johnson was convicted of being the shooter in a triple slaying, and participating in four other capital murders, including shooting a rival drug dealer 15 times.

‘The heinousness of the crimes, the utter senselessness of the crimes, the crimes themselves warranted the seeking of the death penalty this case,’ Vick said.

On Tuesday, the federal government carried out its first execution of a female inmate since 1953, putting to death ‘womb raider’ Lisa Montgomery, 52 (pictured)

In his clemency petition, Johnson’s lawyers said he has repeatedly expressed “sincere remorse” for his crimes.

‘I’m sorry for the great number of people who are dead, you know, and there is a lot on us, and I feel we are no angels,” he said during his sentencing hearing. He also spoke to a group of students present in the courtroom that day and urged them not to commit crimes or make the mistakes he had made in his life.

On Tuesday, the federal government carried out its first execution of a female inmate since 1953, putting to death 52-year-old Lisa Montgomery in Terre Haute, Indiana. She became the 11th prisoner to receive a lethal injection there since July.

Montgomery killed 23-year-old Bobbie Jo Stinnett in the northwest Missouri town of Skidmore in 2004. She used a rope to strangle Stinnett, who was eight months pregnant, and then cut the baby girl from the womb with a kitchen knife. Montgomery took the child with her and attempted to pass the girl off as her own.

An appeals court granted Montgomery a stay of execution Tuesday, shortly after another appeals court lifted an Indiana judge’s ruling that found she was likely mentally ill and couldn’t comprehend she would be put to death. But both appeals were lifted, allowing the execution of the only female on federal death row to go forward

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