LITTLE ROCK, Ark. — An Arkansas death row inmate out of appeals at the state level wants another chance before the U.S. Supreme Court.

Don Davis on Wednesday asked the Arkansas Supreme Court to recall a day-old order ending his most recent appeal. If he fails, state officials could begin taking steps that would lead to his execution at the Cummins Unit prison near Varner in southeastern Arkansas.

Davis had been among eight inmates scheduled to die last April as Arkansas rushed to use an execution drug before its expiration date, but he won a stay because the U.S. Supreme Court at the time was considering an Alabama case similar to his.

At issue was whether Davis and others like him are entitled to meet with independent mental health experts before and during his trial. Lawyers for the state of Arkansas argued that Davis never met the minimum standard for assistance and the Arkansas Supreme Court agreed this month.

“Davis made the strategic decision to not pursue a partisan psychiatrist,” Justice Shawn Womack wrote March 1. “While the U.S. Constitution guarantees a right to a competent psychiatrist, it does not guarantee a psychiatrist who will reach the medical conclusions the defense team desires.”

Davis wants the court to use his case as a way to conduct another review. He claims Arkansas owed him assistance and not just a mental examination — but he must prove that he is posing a “substantial question” to the U.S. Supreme Court.

“It is questionable whether a state-hospital doctor, who has no duty of confidentiality to the defendant and who is available equally to the prosecution, can ever provide the assistance” required, public defender April Golden wrote to the state Supreme Court.

“The Attorney General is reviewing the motions and will respond appropriately,” said Nicole Waugh, a spokeswoman for Arkansas Attorney General Leslie Rutledge.

While Arkansas would be free to set an execution date if Davis has no pending appeals, it currently does not have a full supply of execution drugs after 75 vials of vecuronium bromide expired on March 1. The drug is used to shut down the inmates’ hearts. Other drugs sedate them and stop their hearts.

State prison officials have said it is difficult to obtain replacement drugs, but it has done so twice in the last 13 months and at a cost of only $250. It spent $24,000 on full batches of drugs three years ago.

Meanwhile, 13 death row inmates who still have appeals pending asked on Wednesday to join a lawsuit challenging Arkansas’ method of execution. They claim the sedative midazolam isn’t strong enough to mask the pain of an execution and puts them at risk of a cruel or unusual punishment in violation of the U.S. Constitution.


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