Wednesday, May 23, 2007
By BRENDAN KIRBY Staff Reporter
A prison inmate on death row in Atmore has filed a federal lawsuit in Mobile challenging Alabama's lethal injection procedures in an attempt to halt his execution.
At least five death row inmates have challenged the state's execution method, but Thomas D. Arthur is the first to do so in the Southern District. He has a separate lawsuit pending in the Montgomery-based Middle District seeking a DNA test he insists will prove his innocence.
Lethal injection challenges have swept the nation over the last year, becoming the latest tactic among lawyers who represent defendants who have been sentenced to death. Lawyers for the states deride them as transparent stalling tactics.
A jury in Jefferson County -- where Arthur's trial was moved because of publicity in Colbert County -- convicted Arthur of capital murder in the 1982 death of Troy Wicker. In January 1992, the judge sentenced Arthur to death by electrocution.
Alabama changed its execution method from the electric chair to lethal injection in 2002. The suit filed last week alleges that lethal injection violates the Constitution's ban on "cruel and unusual" punishment.
But Assistant Attorney General Clay Crenshaw said the lethal injection claims made by death row inmates are baseless.
"It's just obvious that all these people are trying to do is stall for time," he said.
Suhana Han, a New York lawyer who represents Arthur, expressed puzzlement over the state's position.
"I don't understand why the state of Alabama would criticize us for ensuring that the method (of execution) Alabama chooses is constitutional," she said.
Arthur's lawyers contend his prosecution was flawed. The victim's wife, Judy Wicker, originally was convicted of the murder. Later, she changed her story, agreeing to testify against Arthur. She won parole after testifying that she paid Arthur to kill her husband. The prosecutor, Gary Alverson, previously had represented her before the parole board.
Alverson has denied a conflict of interest in the case.
Arthur's lawsuit contends physical evidence did not support -- and in some cases contradicted -- the allegations.
The lawsuit claims that Arthur's previous lawyer failed to conduct minimal investigation on his client's behalf and failed to locate two alibi witnesses. DNA testing never has been conducted in the case.
Appeals courts have rejected Arthur's previous claims on grounds that he waited too long to file them, and Crenshaw said they should be rejected again. He contended that Arthur's lawyers are merely looking for ways to delay the execution.
But Han said Arthur has sought DNA tests for years and that he did not file claims earlier because he never received notice of the certificate of judgment triggering the limitations period.
"Our goal from day one has been to present evidence to the court that Mr. Arthur is innocent. We're trying to move this forward," she said.
The lethal injection suit contends that the drug used to stop a death row inmate's heart -- potassium chloride -- causes "agonizing pain" if the person has not been properly anesthetized. It says there is no way to determine if the sodium pentothal used to render the person unconscious is administered properly because a second drug that is used to paralyze the muscles, Pavulon, would prevent the person from reacting.
Crenshaw said the state uses eight times the sodium pentothal that is needed. "It's almost as if they are claiming the same IV line that delivers the first drug that (supposedly) doesn't work right somehow, as if by magic, works with the second and third ones," he said.