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

[January 18, 2021] By Jonathan Allen

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.

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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

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.”

‘SACRED GROUND’

That same night, a small group of activists who travel to Terre Haute to protest every execution gathered on their usual spot by a convenience store parking lot near the turnoff to the prison gate. There they planted large signs saying “EXECUTE JUSTICE NOT PEOPLE” and other abolitionist slogans.

“It’s sacred ground,” said Barbara Battista, a Catholic sister from an Indiana religious order called Sisters of Providence of Saint Mary-of-the-Woods. About two dozen others milled about under a tree, hats on and hoods up against the cold. The vast prison complex across the road glowed with floodlights.

Some of the protesters, including Battista, have stood at the side of condemned prisoners in the execution chamber after becoming their spiritual advisers. Yusuf Nur, a 65-year-old business professor and trustee at the Islamic Center of Bloomington, was with the protesters on Thursday, but was bracing himself to enter the execution chamber on Friday to support Higgs, who converted to Islam in prison, if the execution went ahead.

Beneath the tree, a hefty black metal bell sat on two columns of stacked plastic crates. It can be heard for two miles if struck right, Battista said. As an execution draws near and the white vans carrying witnesses turn toward the prison gates, they wait a bit and then take turns tolling the bell.

“For me, I come here as another human, to not let the government take someone’s life without us being here,” Battista said.

A few hours later, across the road, Johnson was declared dead.

THE FINAL TOLL

Not long before Higgs' scheduled execution time on Friday, Nur, who carried a small, scuffed Arabic Koran inside his brown blazer, stopped back at the hotel. That morning he had visited the inmate, their first in-person meeting Higgs after several phone calls and emails.

“Everybody's going to die,” Nur recalled telling Higgs. “But how many of us will know ahead of time when we're going to die and reconcile ourselves with it, make peace with ourselves with others and with the Creator. Not everybody gets that chance.”

Higgs’ older sister, Alexa Cave, had also visited with him. She hadn’t had the money to visit before, although they had spoken by phone often over his two decades behind bars. Her trip this time, along with that of her 28-year-old son, was paid for through an online fundraiser.

“I forgot how tall my brother was, I really did,” she said. “I was just like, wow, he's got gray in his beard now. I smiled so much my cheeks hurt.”

She grimly observed that her brother, one of the disproportionately high number of Black men on death row, was due to die on Martin Luther King Jr.'s birthday.

More than 40% of people on federal death row in the United States are Black, though Black people are about 13% of the population.

“This is how it’s been since before I was born,” she said. She left to change, preparing to go back to the prison to await her bother's fate. Her new outfit was cinched with a belt that spelled “L-O-V-E.”

Nolan also appeared in the lobby, his outfit the same as Thursday but his eyes much redder. It was about 10 minutes past Higgs’ scheduled execution time of 6 p.m. “It’s a slippery slope, when you get to the 13th execution in a spate of 13,” he said. “But Dustin is still alive and we’re still in the game.”

About four hours later, the Supreme Court’s conservative majority set aside the last remaining stay. At the prison, the white vans carrying witnesses over to the execution chamber started their engines. Nolan completed a written statement that soon would be circulated to the media, decrying the 13 executions as “unprecedented slaughter.”

By the parking lot, Battista and the other protesters tolled their bell.

(Jonathan Allen reported from Terre Haute, Indiana. Additional reporting by Bryan Woolston. Editing by Julie Marquis)

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