Nooner granted second execution stay

Nooner granted second execution stay

BY JOHN LYNCH

Posted on Saturday, September 15, 2007

Convicted murderer Terrick Terrell Nooner won his second stay of execution Friday along with a rare chance to try to prove his innocence with new evidence — the recent analysis of surveillance tape that Nooner’s attorneys say shows he wasn’t the killer.

Attorney General Dustin Mc-Daniel responded to the decision by the 8 th U. S. Circuit Court of Appeals in St. Louis by petitioning the U. S. Supreme Court to reinstate Nooner’s execution, scheduled for Tuesday.

In a news release, the attorney general said an expert working for the prosecution has found the defense interpretation of the video to be flawed. A written report hasn’t been completed, but prosecutors hope it will be completed quickly so they can use it to supplement their efforts to have Nooner put to death on Tuesday.

The 8 th Circuit’s decision could delay the 36-year-old Nooner’s execution — first put on hold five days ago — for at least a year unless the high court sides with McDaniel.

Chief Deputy Attorney General Justin Allen said he hopes the court will rule for the state on Monday. He said the court’s decision could even come on Tuesday, allowing Nooner to be executed by lethal injection later that day. He said the Supreme Court justices have a procedure for handling last-minute appeals.

“They’re used to this. They deal with these issues from all over the country on a fairly frequent basis,” he said. “They have their expedited process for dealing with these death-penalty last-minute issues.”

Nooner’s execution was first ordered suspended on Monday by Chief U. S. District Judge Leon Holmes of the Eastern District of Arkansas. Holmes said he had to consider claims by Nooner that he is mentally retarded, as ordered by an 8 th Circuit directive to assess Nooner’s 2006 request for a mental health evaluation.

Nooner claims that he needs special access to mental-health professionals to develop his case that he isn’t fit for execution under a Supreme Court ruling that prohibits putting to death people who have mental retardation or are insane.

Nooner was convicted of capital murder in Pulaski County Circuit Court for fatally shooting 22-year-old Scot Stobaugh in March 1993. Stobaugh, a student at the University of Arkansas at Little Rock, was shot seven times and robbed of $ 20 and a checkbook at the Funwash on West Markham Street in Little Rock.

The Arkansas Supreme Court affirmed the conviction in 1995.

Video from a camera in the coin-operated laundry was used as evidence during Nooner’s six-day trial. It showed Stobaugh loading his clothes into a dryer, then raising his hands as a gunman approaches before marching offcamera with the man, who prosecutors say is Nooner.

Friday’s stay was based on new evidence from the defense, particularly the 23-page analysis of the video that Nooner’s attorneys revealed Aug. 17 at a state clemency hearing. According to the report, which was filed Friday in federal district court in Little Rock, only three out of the six frames in the video that show the killer can be used to determine the man’s height.

The report, by Richard Hartley, an Australian university professor, found the suspect to be 5 feet 6 inches tall, with a margin of error of a half-inch. That matches the height of Nooner’s co-defendant, 33-year-old Robert Lewis Rockett III. Nooner is 5 feet 9 inches tall, his defense attorneys say.

Rockett, sentenced to life for another killing, also is serving a 65-year prison sentence for his role in the murder of Stobaugh. Rockett also now claims to be the killer, and his 14-page confession is part of the new evidence that Nooner’s supporters hope will persuade a judge to overturn his death sentence.

The state’s expert, Grant Fredericks of Canada, found that the defense analysis is unreliable, said Allen of the attorney general’s office.

“There’s nothing there. The foundation of this is completely hollow,” he said. “It does nothing in our mind, and we believe in the mind of a court, a jury or the public to call into question the guilty verdict determined by a jury in this case.”

Fredericks, a university instructor of forensic video applications in the United States and Canada and an adviser to the International Association of Chiefs of Police, found that Hartley deviated from accepted methodology in the field, never visited the murder scene to conduct comparative measurements and has acknowledged that much of his measurements are “guesswork,” according to the attorney general’s news release.

Allen said prosecutors had to hire their own authority to analyze the defense findings to get ready to challenge them in court and to make sure the defense claims are wrong.

“We had to do something to make ourselves comfortable, the governor comfortable and the people of this state comfortable that we’ve got the right guy,” Allen said. “If he’s the wrong guy... the state’s not interested in executing the wrong guy.”

By law, convicts usually get only one chance to file a writ of habeas corpus challenging their convictions, said Richard Dieter, executive director of the Washington, D. C.-based Death Penalty Information Center. Friday’s decision by the 8 th Circuit to allow Nooner to submit a second writ is rare because inmates hardly ever come up with substantive proof of innocence, he said.

“It’s rare for inmates to be allowed to file a [second ] habeas corpus petition,” Dieter said. “The law the Congress wrote in 1996 specifically said you only get one. The only exception is new evidence of innocence or... issues that would be supported by new evidence of innocence. Innocence is what they call the gateway you have to pass through to get a second crack at the federal courts.”

Nooner’s new evidence includes the Rockett confession and an original witness who has changed her story. Dieter said that kind of evidence isn’t usually enough to sway the federal courts.

“Courts just look at that stuff very suspiciously and don’t give you a second chance,” he said.

But federal judges have been more receptive to scientific advancements that allow old evidence to be examined more closely, he said. DNA has been the poster child for science, but Dieter said video analysis also could find favor with the courts.

“New ways of analyzing videos are comparable to DNA. Today science can tell you a lot more about that evidence,” he said.

Congress changed the law in 1996 to resolve death-penalty appeals faster, Dieter said. Scientific advancements appear to have convinced the courts that faster isn’t always better, he said.

“Now courts are ready to give a little more time for science evidence,” he said. “Now courts are realizing that speeding it up may mean a fatal mistake.”