By MICHAEL GRACZYK Associated Press
LIVINGSTON — Lawyers for two murderers set to die by lethal injection Thursday say the executions should be delayed because of the U.S. Supreme Court's plans to review that method of capital punishment, but officials in both states involved intend to press ahead.
In Texas, attorneys for Carlton Turner Jr. hurriedly prepared appeals Wednesday challenging lethal injection.
In Alabama, attorneys for Tommy Arthur are seeking a stay of his execution not only because of the high court's plans, but because Gov. Bob Riley decided Wednesday to change the state's lethal injection procedures. The procedures can't be changed in time for Thursday's scheduled execution, but state officials say the procedures already in place are constitutional.
The Supreme Court announced Tuesday that it will hear a challenge early next year from two inmates on death row in Kentucky — Ralph Baze and Thomas Clyde Bowling Jr. — who claim that lethal injection as practiced by the state amounts to cruel and unusual punishment, in violation of the Eighth Amendment.
Legal experts say it's unlikely the high court will issue a national moratorium while the case is considered. It declined to halt Tuesday's execution of Michael Richard in Texas, conducted just hours after it announced it would review the Kentucky case.
Doug Berman, a sentencing expert at Ohio State University's law school, said he expects some state courts to stop executions while awaiting the outcome of the Kentucky case.
If neither execution scheduled for Thursday is stopped, he said, "It will be a pretty strong statement that it's business as usual."
One possible explanation for the Supreme Court's decision to accept the Kentucky appeal, yet allow other lethal injection executions to proceed, lies in the different number of votes needed to take a case and block an execution.
Supreme Court rules require just four votes to accept a case but five justices to block an execution.
"It's possible there is not a fifth vote to grant a stay of execution pending resolution of the case," said Carol Steiker, a Harvard Law School expert in criminal law.
Every state that uses lethal injections employs the same three drugs, but there are differences among the states in the way the drugs are administered, training of executioners who administer them and dosages, Steiker said.
In North Carolina, lawyers for death row inmates asked state leaders to delay action on execution protocol until the Kentucky case is decided. A judge in August ordered the Council of State to reconsider its execution protocol approved in February, but the lawyers now want the council to wait to act on the issue until the high court rules.
Turner, 28, was condemned for the 1998 slayings of his parents in suburban Dallas. He was 19 when authorities said he shot Carlton Turner Sr., 43, and Tonya Turner, 40, several times in the head. He then bought new clothes and jewelry and continued living in the family's Irving home as their bodies decomposed.
Turner would be the 27th inmate in the nation's busiest death penalty state to die this year by lethal injection.
The U.S. Supreme Court on Tuesday refused to review Turner's case, but his attorneys said they were preparing further appeals on the lethal drug issue. Also Tuesday, the Texas Board of Pardons and Paroles, on a 7-0 vote, turned down a request to commute his sentence to life in prison.
In a death row interview last week, Turner acknowledged killing his parents in the home they shared.
"People got killed," Turner said. "I did it. The only thing that matters is I did what I did."
Turner testified at his trial that he shot his father in self-defense because his father abused him but recalled little about killing his mother.
In Alabama, Gov. Riley decided on Wednesday to change the lethal injection procedure to provide additional safeguards to make sure inmates are unconscious before they are administered drugs to stop the lungs and heart, said Jeff Emerson, Riley's communications director. Details of the change are still being worked out, but Emerson said it could include more anesthetic and an additional check for unconsciousness.
In papers filed with the Alabama Supreme Court, Arthur's attorney Suhana Han argued that the planned change in Alabama's procedures should prompt the postponement of his execution. Arthur, 65, is sentenced to die for the 1982 murder-for-hire killing of 35-year-old Troy Wicker of Muscle Shoals.
"At this point, we are hopeful the fact that the state of Alabama is essentially conceding deficiencies in its protocol will help Mr. Arthur gain a stay," she said.
Emerson and Assistant Attorney General Clay Crenshaw said the state is not conceding any deficiencies.
Crenshaw, who opposes a stay, characterized the change as very minor and said it was not in response to Arthur or other inmates challenging Alabama's procedures.
Crenshaw told the Alabama Supreme Court that Arthur has not produced evidence of any execution mishap in an Alabama lethal injection execution or any "cruel or unusual pain" suffered by an inmate during a lethal injection.