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If Ledell Lee's lawyers had succeeded last night in getting a court to stay his execution just half an hour longer, Arkansas's warrant would have expired, and the state would have had to set a new date. Instead, his last appeal ran out at 11:30 p.m., the lethal injection procedure began at 11:44, and Lee was dead by 11:56.

Arkansas Governor Asa Hutchinson had scheduled a marathon eight executions to take place this week before one of the drugs in their death cocktail expired, effectively putting Arkansas out of the death penalty business. This triggered dozens of lawsuits, attempts by pharmaceutical manufacturers to repossess their drugs from the state, strong protest that the drugs used violate the 8th Amendment prohibition on cruel and unusual punishment, protest from prison officials, and a massive publicity shitshow.

At least three of the condemned men have been granted stays of execution. But Arkansas Attorney General Leslie Rutledge painted Lee's death last night as a moral victory for justice and the legal system.

Supreme Court Justice Stephen Breyer had a different take.

Arkansas set out to execute eight people over the course of 11 days. Why these eight? Why now? The apparent reason has nothing to do with the heinousness of their crimes or with the presence (or absence) of mitigating behavior. It has nothing to do with their mental state. It has nothing to do with the need for speedy punishment. Four have been on death row for over 20 years. All have been housed in solitary confinement for at least 10 years. Apparently the reason the State decided to proceed with these eight executions is that the ‘use by’ date of the State’s execution drug is about to expire. [...] In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random. I have previously noted the arbitrariness with which executions are carried out in this country. See Glossip v. Gross, 576 U. S. ___ (2015) (BREYER, J., dissenting). And I have pointed out how the arbitrary nature of the death penalty system, as presently administered, runs contrary to the very purpose of a “rule of law.

So, how random was it? Rutledge describes an orderly criminal justice system, with diligent police and prosecutors, judges and juries who assess guilt and penalties without bias, and prisons which merely carry out sentences as written. Justice Breyer decries a chaotic system, where life and death are decided as much by chance as by a prisoner's crimes. When it comes to Ledell Lee, which version of the story is more accurate?

Here is a partial list of "ifs" that might have affected the outcome of this case.

  • If the original trial judge who convicted Lee hadn't been having an affair with the prosecuting attorney, whom he later married;
  •  If the trial counsel had presented alibi witnesses or asked for a mistrial when a member of the jury spent 20 minutes in the judge's chambers during jury deliberations;
  • If Lee's second attorney, Craig Lambert, appointed for the appeal phase, hadn't been so intoxicated that the prosecutor asked to have him drug tested, causing the judge to state on the record, "[I] didn't know you'd just gotten out of rehab. If I had known that, I would not have put you on this case.";
  • If either the warden or Mr. Lee's attorneys had explained to him that he was being removed from the prison for a psychiatric evaluation, he might have consented to the examination. Instead the claims of mental retardation and fetal alcohol syndrome were presented too late for consideration.;
  • If Lee's third set of attorneys had taken his phone calls, presented possible exculpatory DNA evidence or mitigating evidence of his low IQ and intellectual impairment, or mounted more than a token half-day argument at his second appeal;
  • If Lee had been permitted to dismiss his fourth set of attorneys as requested before one was disbarred for having serious mental illness;
  • If Governor Hutchinson hadn't forced Lee's sole remaining attorney to hurriedly file clemency petitions in the narrow window between setting the date of execution and carrying it out;
  • If Arkansas had ready access to lethal injection drugs, and hadn't forced a truncated execution schedule;
  • If Debra Reese, Lee's alleged victim, had been black; or if Lee had been white;
  • If any court along the way had ordered the state to do a DNA test using modern technology to rule out any exculpatory evidence for a man who has consistently maintained his innocence for 24 years;
  • If executions were scheduled based on something other than the random expiration date of a particular shipment of drugs;
  • If McKesson pharmaceuticals had succeeded in getting its drugs returned from Arkansas, which had deceptively ordered them as supplies for the prison hospital;
  • If a "good Samaritan" in the prison parking lot hadn't "donated" the potassium chloride that stopped Lee's heart;
  • If Justice Gorsuch hadn't been sworn in as the fifth vote at the Supreme Court against Lee's appeal.

That's a lot of "ifs." If any one of these had swung in the other direction, Mr. Lee would not have been executed last night. In which case, Justice Breyer is right. The difference between life in prison and a death sentence is basically arbitrary. What kind of justice is that?

[ WonketteMcGehee v. Hutchinson, Breyer dissent / Lee v. Kelley, ACLU Brief / Live Twitter Account of Legal Proceedings around Lee's Execution by Buzzfeed's Chris Geidner]

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