Triple murderer appeals dismissal of Lackey claim

Tuesday, December 1, 2009 at 1:56pm

Lawyers for convicted killer Cecil Johnson have filed another motion to stay his execution scheduled for early Wednesday morning, this time in Sixth District U.S. Court of Appeals. The basis of their appeal argues Monday's District Court decision improperly interpreted Johnson's request and transferred the matter to the higher court.

Attorneys argued Monday before U.S. District Court Judge Robert Echols that Johnson's execution would represent a violation of his Eighth and 14th Amendment rights because the 29 years it's taken to work through the appeal process constitutes “cruel and unusual punishment” — a so-called Lackey claim, named after Clarence Lackey, the Texas death row inmate who first used the defense.

“Mr. Johnson contends that after being subjected to the psychological torture of being forced to live in a state of constant apprehension of imminent death for nearly three decades, carrying out his death sentence this far removed from the imposition of his sentence would violate the Eighth and 14th Amendments,” the filing reads.

Echols determined the claim represented a “second or successive” petition after Gov. Phil Bredesen denied executive clemency and therefore was out of the jurisdiction of his court to grant a stay.

In the appellant filing, Johnson's lawyers ask the court to stay the execution in order to determine whether or not Echols' court “erred in its determination.” That decision he argues was based on an “improper characterization of Mr. Johnson's action as a challenge to the validity of his sentence, rather than as the challenge to the conditions of his confinement,” the filing states.

If the appellant court finds Echols erred in sending the decision to the appellant, the filing asks the injunction request be returned to District Court.

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Judge dismisses convicted killer's request for injunction