The fight to avert one last execution on Trump’s watch

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An anti-death penalty activist holds a sign during a vigil outside the United States Penitentiary in Terre Haute, Indiana, U.S. January 15, 2021. Picture taken January 15, 2021. REUTERS/Bryan Woolston

TERRE HAUTE, Ind. (Reuters) – On Thursday evening, Dustin Higgs, 48, waited in a cell on death row at the federal prison in Terre Haute, Indiana, his scheduled execution less than 24 hours away.

A five-minute drive down the road, members of his legal team sat around a laminated plastic table in the lobby of a no-frills hotel off the interstate. Federal Defender Shawn Nolan sipped beer as he waited for his colleagues in Philadelphia to patch together the four or five points needed for a last-ditch court filing aimed at delaying Higgs’ execution by lethal injection.

If it went ahead, the federal execution would be the 13th and final one scheduled under U.S. President Donald Trump. Few were performed before this administration — three since 1963, all in the early 2000s. Joe Biden, the president-elect to be sworn in within days, has said he will work with lawmakers in Congress to end the death penalty.

Unshaven, wearing a slouchy green fleece jacket and a faded baseball cap, Nolan looked nothing like the suited figure from a year earlier, when he and a squadron of other death-row lawyers were challenging the government’s lethal-injection protocol in the grand federal courthouse in Washington D.C. Although the litigation continues, the string of executions proceeded.

An email arrived from the Philadelphia office, with the legal filing attached. Nolan grabbed at the sides of his laptop.

“This brief is beautiful,” he said. “It’s tight, it’s right, it’s right on the law, it’s accurate. We should win.”

Nolan had toiled in the lobby for hours with three others at a table littered with snacks. Using their laptops and phones, the defense team jousted with federal lawyers, filing opposing briefs with the U.S. Supreme Court.

Higgs and an accomplice, Willis Haynes, were convicted at separate trials in the killing of three women on a U.S. wildlife reserve in 1996: Tanji Jackson, 21; Tamika Black, 19, and Mishann Chinn, 23.

Higgs invited the women over to a party in his apartment; then, after an argument, he and Haynes kidnapped them in his van. At a secluded part of the refuge, Higgs handed his gun to Haynes, ordering him to kill the women. Haynes was sentenced to life in prison, Higgs to death.

In a statement last year, the U.S. Justice Department called the murders “staggeringly brutal.”

Some of the victims’ relatives had traveled to Terre Haute for the execution. A sister of Jackson prepared a statement addressed to the killer, saying the women’s families had been left “heartbroken” by the murders.

“When we received the news that you were given a date, it brought up mixed emotions,” said the sister, whose name was not released by the Justice Department. “On one hand, I felt we were finally going to get justice, but on the other, I felt sad for your family. They are now going to go through the pain we experienced. When the day is over, your death will not bring my sister and the other victims back. This is not closure, this is the consequences of your actions.”

The Justice Department did not respond to a request to interview the victims’ families.

Though capital punishment has been abolished by most countries, it is supported by 54% of Americans in the case of murder, according to a 2018 survey by the Pew Research Center. In announcing the resumption of executions in 2019, William Barr, then Trump’s attorney general, said “we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

Many of the people opposed to executions at the prison stay at the Terre Haute Marriott. Thursday was no different: Defense lawyers, protesters and family members all passed through its doors at various times, bumping into each other in the banal lobby with its busy green carpet and piped-in soft rock.

Higgs’ sister wept there while talking to his spiritual adviser.

Later, Nolan got up from the lobby table as his phone rang. When the Supreme Court calls, it says, “No ID.” A court clerk wanted to know when Nolan might reply to a new government petition that could clear away one of the few remaining obstacles to Higgs’ execution.

Nolan believed his team’s best hope for a reprieve lay in a joint filing before the Supreme Court with Corey Johnson, a fellow death row inmate due to be executed that very night.

Both men had been diagnosed in December with COVID-19. A lower court had agreed that they would likely experience the terror of drowning when pentobarbital, the barbiturate now used in most lethal injections, caused their lungs to fill with fluids.

The lawyers wanted the Supreme Court to restore that order, overturned by an appeals court, arguing that the procedure would violate constitutional protections against cruel and unusual punishment.

As his colleagues left for bed, Nolan stayed back to clear up snack packets and beer cans. An email arrived at 9:50 p.m.: The Supreme Court had rejected all of the outstanding arguments by Johnson’s lawyers, including the joint filing with Higgs’ lawyers with the COVID-19 argument.

Nolan was silent for some time.“It doesn’t bode well,” he said.

But Higgs still had another argument not yet decided by the Supreme Court. Nolan tried to summon some optimism. “We’ll keep up the fight tomorrow and see if we can get something good.”

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