Tuesday, 8 July 2008

Killer seeking delay of execution

Killer seeking delay of execution

Arthur says `new' step merits challenge
Tuesday, July 08, 2008
News staff writer

After convicted killer Thomas D. Arthur is strapped to a gurney at Holman Correctional Facility near Atmore later this month, he'll be given 100 cc's of sodium pentothal.

In the first use of a new execution procedure adopted last fall, a corrections officer will then speak Arthur's name, pinch his arm and brush a finger over his eyelashes to determine whether the barbiturate has rendered him unconscious. If he's still conscious, he'll get 100 cc's more, and the execution will continue, according to court documents that provide new details about the procedure.

In an appeal filed late last week, Arthur, convicted of a 1982 contract killing, argues that the possible second 100-cc dose makes the procedure "entirely new," and asks the court to delay his execution while he challenges it.

Efforts to reach Arthur's attorney were unsuccessful. But Arthur's daughter, Sherrie Stone, on Monday expressed little confidence that the challenge before the U.S. Court of Appeals for the 11th Circuit would delay the July 31 execution. Stone was instead focused on a national campaign to pressure Gov. Bob Riley to issue a stay and order DNA testing of evidence.

"He's always claimed his innocence," Stone said of her father. "The DNA tests would resolve the whole issue."

The New York-based Innocence Project, which advocates DNA testing for condemned inmates, on Monday began an e-mail campaign to pressure the governor, who previously has rejected requests to order testing. A spokeswoman for the governor said he had no plans to take action on Arthur's behalf.

"The evidence is overwhelming that Thomas Arthur is guilty, and barring court action, the state plans to move forward with his scheduled execution," said Tara Hutchison, Riley's press secretary.

Arthur, now 66, was convicted of killing Muscle Shoals' Troy Wicker, 35, who was shot through the right eye as he slept. Wicker's wife, Judy, initially told police that a burglar raped her and killed her husband. But she later recanted and said she paid Arthur, a work-release inmate with whom she was having an affair, to kill her spouse so she could collect $90,000 in life insurance proceeds. In return for her testimony against Arthur, Judy Wicker got a shortened prison sentence. Arthur has maintained his innocence since his arrest.

According to Stone, modern DNA testing not available at the time of Arthur's trial could cast doubt on his conviction, and even point to another suspect.

"It also could show he's guilty," Stone said. "We've always said that. But why not do the tests?"

Barring an unlikely stay from the governor, most of Stone's remaining hope lies with the challenge mounted against the new execution procedure.

The Department of Corrections does not disclose details, but has said that it uses the same three-drug cocktail used by a majority of states. In a recent filing to the Alabama Supreme Court, the state's lawyers identified those three chemicals as sodium pentothal, administered to render the condemned unconscious; pancuronium bromide, to induce paralysis; and potassium chloride, to stop the heart.

After the U.S. Supreme Court agreed last year to hear a Kentucky challenge to a procedure identified as identical to Alabama's, the consciousness check was added between the administration of the first two chemicals.

In the recent filing to the state Supreme Court, state attorneys cast doubt on the likelihood that a challenge to Alabama's new procedure would succeed, noting that in the Kentucky case of Baze vs. Rees the U.S. Supreme Court ruled that a lethal injection procedure "substantially similar" to Kentucky's meets constitutional muster. Even in dissent, the justices indicated such challenges would fail, the state's lawyers said.

U.S. Supreme Court Justice Ruth Bader Ginsburg, writing for the minority, specifically mentioned Alabama's new procedure, similar to one in Florida, as a solution to Eighth Amendment issues. In Kentucky, she wrote, "No one calls the inmate's name, shakes him, brushes his eyelashes to test for a reflex..."

If Riley doesn't order DNA testing or issue a stay, and if the challenge to the new execution procedure fails, Arthur may have one last legal option, Stone said.

The U.S. Supreme Court ruled June 12 that terror suspects at Guantanamo Bay, Cuba, have the right to challenge the merits of their detention before U.S. courts. The merits of Arthur's case have never been the subject of a hearing in a federal court, where his appeals have been dismissed for having been made too late.

Arthur may next appeal on the grounds that he ought to be granted an appeal despite having missed a deadline.

"Terror suspects have more rights than my father," Stone said.

E-mail: sdiel@bhamnews.com

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