Originally published by the Tuscaloosa News
Sep 19, 2007
By Dana Beyerle Montgomery Bureau
MONTGOMERY The daughter of condemned inmate Tommy Douglas Arthur pleaded Wednesday for a stay of her father’s scheduled Sept. 27 execution until a federal court can rule on a request to test DNA from the 1982 murder he was convicted of.
Sherrie Arthur Stone said DNA testing of evidence could exonerate her father, who in a recent telephone interview with the TimesDaily of Florence said he is innocent in the shooting death of Colbert County businessman Troy Wicker.
"All we’re asking, and ever have, is to test the DNA evidence that was found but never tested," Stone said. "Whether you believe in the death penalty or not, you should test the DNA evidence."
Arthur, 65, lost one federal appeal and is quickly running out of options as his scheduled date with the lethal injection chamber at Holman Prison nears.
Arthur was convicted three times and sentenced to die for Wicker’s death. Wicker’s widow originally said a black male broke into their home, raped and beat her, and when she came to her husband was dead.
She later testified that she hired Arthur to kill her husband. Arthur was convicted based on her testimony and on circumstantial evidence that was gathered before DNA testing was available.
Arthur lost one of his latest appeals when a panel of federal judges said Arthur waited to long to challenge the constitutionality of Alabama’s use of lethal injection.
In a 2-1 opinion and without addressing the merits of his appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld a U.S. District Court ruling. The unpublished opinion was released Monday.
"There is no justification for Arthur’s failure to bring this lethal injection challenge earlier to allow sufficient time for full adjudication on the merits of this claim," the unsigned opinion said.
U.S. Circuit Judge Rosemary Barkett dissented, saying the lower court made a mistake refusing to hear Arthur’s "challenge to Alabama’s lethal injection protocol" simply because he failed to file a claim as soon as the Alabama Legislature changed the method of execution to lethal injection.
Arthur can still go to the U.S. Supreme Court, which his attorney said he’ll do, and he still has an appeal in the 11th U.S. Circuit to test the crime scene DNA.
"We respectfully disagree and strongly believe that before Mr. Arthur is executed by lethal injection, the constitutionality of the method should be addressed," said attorney Suhana Han.
She said Alabama has hired an expert to review the drugs used in lethal injection and there is the pending federal trial in Montgomery over the legality of lethal injection.
Han asked what the harm was in waiting for the outcome of the trial and the testimony of Dr. Mark Dershwitz?
"How can the state of Alabama execute Mr. Arthur before a federal court rules?" Han asked. "Again, the point is we are trying to address the merits of a very important question, whether the state is planning to execute Arthur by an unconstitutional method."
Dr. Dershwitz’s contract to be an expert witness about Alabama’s method of execution was renewed by the legislative contract review committee earlier this month for the Attorney General’s Office earlier. He’s scheduled to be an expert witness in an upcoming trial over lethal injection in Montgomery federal court.
Arthur still has an appeal seeking DNA testing that wasn’t available when he was first tried. The 11th U.S. Circuit Court has not ruled on the DNA request.
The anti-death penalty group, Amnesty International, has taken up Arthur’s case, saying since he’s potentially innocent he should get a hearing on evidence that could raise doubts about his guilt.
Tom Smith of the TimesDaily in Florence contributed to this story.