The commonwealth of Virginia complied and Prieto was pronounced dead at 9:17 p.m. in an execution that is apparently the 1st in modern state history carried out while a request for a stay was pending in the U.S. Supreme Court.
Gov. Terry McAuliffe's office was notified at 9:05 p.m. that the stay application was being filed and he could have, as have other governors, delayed proceedings until the Supreme Court ruled - a red telephone receiver held by a prison official inside the execution chamber kept open a direct line to the governor's office. McAuliffe, under no obligation to hold things up, did not.
Barry A. Weinstein, a former director of the Virginia Capital Representation Resource Center, conceded Prieto's chances for a stay appeared slim and agreed that without a stay in place the execution could proceed. Nevertheless, he was surprised the governor did not wait.
"Let's assume the Supreme Court would have ruled in favor of Prieto's stay and he had been executed - someone's going to answer for it," said Weinstein, now a lawyer in Georgia. "You just never know when 5 justices are going to vote for a stay."
Former Virginia governors, attorneys general and defense lawyers contacted recently could not recall another case where a stay application was pending at the time of execution and noted that some executions were held up waiting for the high court to rule on a request. But they said the hours leading up to an execution are difficult for all parties and that it is up to each governor to decide how to handle matters.
"It probably would have just delayed them 30 minutes to an hour," said George Allen, governor from 1994 to 1998 and in office for 22 executions. He said the Supreme Court is usually alerted ahead of time when executions are imminent and these situations may develop.
Allen said he was not familiar with the details of Prieto's case and intends no criticism of McAuliffe. "This is a very personal decision," Allen said.
Allen noted that McAuliffe, a Roman Catholic, allowed the court's sentence to be carried out just after the U.S. visit by Pope Francis, who spoke against the death penalty.
"Now, it might have been slightly different from the way we did it," Allen said of Prieto's execution. But, he said, "I know Governor McAuliffe's faith and I know he deeply respects the pope and he went forward and did his (civil) duty," Allen said. "You can argue over this nuanced aspect of it but, in a broader sense, I commend him for doing his duty."
The Virginia attorney general's office, which had staff inside the execution chamber and in Richmond and was dealing with the courts on behalf of the state, was not notified by the Supreme Court about the stay application until 9:13 p.m., well after the execution started
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| Alfredo Prieto |
Spokesmen would not comment on whether the governor's office alerted the attorney general's office about the stay application prior to 9:13 p.m. But the attorney general's office said Prieto's lawyers did not advise them about going to the Supreme Court.
The drugs did not start flowing into Prieto via IVs until after his last statement at 9:08 p.m. The Virginia Department of Corrections, whose execution team carried out the procedure at the Greensville Correctional Center in Jarratt, was not told there was a stay application pending, a department spokeswoman said.
Many details of what transpired that night are not known. But emails obtained under a Virginia Freedom of Information Act request by the Richmond Times-Dispatch suggest that at least one official at the attorney general's office and a Supreme Court clerk were caught short by developments.
At 9:07 p.m., Alice Armstrong, a senior assistant attorney general working in Richmond, sent an email to Kyle R. Ratliff, emergency applications clerk for the U.S. Supreme Court, attaching the appeals court order. That was 7 minutes after the 4th U.S. Circuit Court of Appeals rejected Prieto's stay request, a minute after IV lines were placed in his arms, and a minute before he made his last statement.
At 9:13 p.m., Ratliff replied: "Received, thank you. Prieto has filed a stay application with this Court ... I assume the state plans to file a response?"
Armstrong replied at 9:15 p.m., "Yes. I will send shortly."
"OK, thanks Alice," Ratliff said at 9:15 p.m.
At 9:20 p.m., Armstrong emailed: "I'm told the application is now moot as of 9:17."
Ratliff replied at 9:20 p.m.: "What do you mean?"
Michael Kelly, a spokesman for the attorney general's office, said the email chain ended there and that Armstrong picked up the telephone and called Ratliff to fill him in.
Brian Coy, a McAuliffe spokesman, said the governor, the only person outside the courts who could have intervened, announced his decision days earlier not to do so. The governor considered the same questions that had been turned down by other courts and that was before the Supreme Court.
"His job as governor is not to act as a court and intervene," Coy said. Although other governors have delayed executions under similar circumstances, Coy said, "Intervening at that point is up to the courts." The courts, he noted, saw no reason to intervene earlier that day.
Robert E. Lee, current director of the Capital Representation Resource Center and one of Prieto's lawyers, saw it differently. In a statement issued shortly after the execution, he complained that it was carried out while the stay application was before the Supreme Court. "We will never know whether Mr. Prieto's execution is legal and humane," Lee said.
Lee said Friday that he did not notify the attorney general's office in addition to the governor's office that night because it was his understanding the 2 offices were in communication via telephone from the prison.
In the past, Allen and other Virginia governors generally waited until all pending court matters were settled before acting on clemency petitions. That changed with Gov. Bob McDonnell, who immediately preceded McAuliffe in office. McDonnell announced early in his administration that he would act on clemency petitions 5 days beforehand instead of at the last moment to spare victims' families and the condemned from uncertainty.
McAuliffe is following a similar policy and rejected intervening in Prieto's case 4 days earlier, stating in part: "It is the governor's responsibility to ensure that the laws of the commonwealth are properly carried out unless circumstances merit a stay or commutation of the sentence. After extensive review and deliberation, I have found no such circumstances, and have thus decided that this execution will move forward."
5 executions were carried out during McDonnell's term, but unlike Prieto's case, there were no 11th-hour stay requests that might have interfered with the timetable. A McDonnell spokesman said the former governor could not comment for this story.
Jerry Kilgore, a former Virginia attorney general, said that as he recalls, the court process was normally allowed to run its full course before executions proceeded.
Former Virginia Attorney General Mark L. Earley, a Richmond lawyer who now opposes the death penalty, did not respond to requests for comment.
There have been 111 executions in Virginia since the U.S. Supreme Court allowed the death penalty to resume in 1976. As is sometimes the case - but not in recent years - appeals and requests for stays were flying among courts in the hours and minutes preceding Prieto's execution.
Richmond lawyer William G. Broaddus, Virginia's attorney general during five executions in 1985 and 1986, later came to oppose the death penalty. He helped represent condemned killer Angel Breard, executed in 1998 after court proceedings came down to the wire.
"We did everything we could to avoid the last-minute stuff. I can't stand this last-minute stuff," Broaddus said. "It didn't matter which side you were on. The process is so difficult to have uncertainty thrown into it, it just makes the agony that much more difficult. It's just awful. It has to be awful for the judges," he said.
Breard's was the 1 case that current death penalty defense lawyers thought a stay request may have been pending when he was executed. But the clerks' offices for the U.S. Supreme Court and the 4th U.S. Circuit Court of Appeals said records show no stay requests were pending when Breard's execution took place.
According to Times-Dispatch accounts of Breard's execution - delayed from 9 p.m. to after 10 p.m. - the U.S. Supreme Court denied a request for a stay and other matters after 8 p.m. Breard's lawyers filed a new petition in U.S. District Court, were refused there and then went to the 4th U.S. Circuit Court of Appeals, which also refused the stay. The lawyers apparently did not appeal yet again to the U.S. Supreme Court.
Then-Gov. Jim Gilmore turned down Breard's clemency request and Breard was executed. Gilmore, also a former Virginia attorney general and Henrico County prosecutor, said he could not recall a case where an execution took place while a stay request was pending. "But if it did happen, I could see where it would, logically, maybe occur ... the execution proceeds on time unless an order is issued to stay the execution," he said.
"It was my recollection that there was a stay requested in (virtually) every case. That's standard practice in death penalty cases," he said. "Those are last-minute requests that are made to the courts, and the courts usually refuse them."
In Prieto's case, the U.S. Supreme Court and other courts had turned down his appeal centering on his claim he was intellectually disabled.
Gerald T. Zerkin, a Richmond lawyer who headed the capital representation center after Weinstein, said he was less concerned about an unresolved stay request as he was that courts would not give Prieto a chance to present evidence on his intellectual disability claim. (Courts held the claim had not been raised at the proper time, and authorities argued 1 jury had already rejected that argument.)
Prieto's lawyers, however, learned that the state had obtained 1 of the injection drugs from Texas a little more than a month before the execution. Virginia's own supply would expire Sept. 30 - the day before the execution.
Prieto that day won a temporary restraining order from a federal judge in Alexandria over concerns the drug might be defective and its use would violate the ban against cruel and unusual punishment. But the case was transferred the next day to federal court in Richmond, where, at 5:50 p.m. with the execution set for 9 p.m., a judge ruled the execution could proceed.
Prieto appealed that ruling to the 4th U.S. Circuit Court of Appeals, which turned him down at 9 p.m., triggering the application to the U.S. Supreme Court at 9:05 p.m.
A timeline in the Prieto case
This timeline is based on information from Alfredo Prieto's lawyers, the Virginia Department of Corrections, the Virginia attorney general's office, the governor's office and the courts.
Oct. 1
5:50 p.m.: U.S. District Judge Henry E. Hudson vacated the temporary stay of Prieto's execution entered the day before and the execution was allowed to go forward. Prieto then sought a stay of execution from the 4th U.S. Circuit Court of Appeals, which the state opposed.
At approximately 8:52 p.m., while the 4th Circuit stay request was pending, Prieto was led into the execution chamber and strapped into a gurney.
8:55 p.m.: The curtain blocking the witness viewing area was closed.
9 p.m.: The 4th Circuit denied Prieto's request for a stay of execution.
9:02 p.m.: The Virginia Department of Corrections was notified the 4th Circuit denied the stay request.
9:05 p.m.: Prieto's lawyers filed a motion for a stay of execution with the U.S. Supreme Court and told the governor's office that a stay was being sought there.
9:06 p.m.: The IV lines were placed in Prieto's arms.
9:08 p.m.: The curtain was drawn back. Prieto spoke his last words and, shortly thereafter, the 1st of 3 drugs used to execute him was administered.
9:10 p.m.: Prieto's lawyer, unaware the execution was proceeding, told the Supreme Court that, presuming the state's opposition to the stay request was the same as was filed in the 4th Circuit, the court should not wait for a reply on behalf of Prieto.
9:13 p.m.: The U.S. Supreme Court notified the Virginia attorney general's office that a stay motion was filed on behalf of Prieto and provided a docket number.
9:15 p.m.: The attorney general's office told the U.S. Supreme Court that the state was preparing a response to the stay request.
9:17 p.m.: Prieto was pronounced dead.
9:20 p.m.: The Virginia attorney general's office notified the U.S. Supreme Court that the issue was moot as of 9:17 p.m.
Oct. 2
Order from U.S. Supreme Court entered in case: "The application for stay of execution of sentence of death presented to The Chief Justice and by him referred to the Court is dismissed as moot."
Source: Richmond Times-Dispatch, October 24, 2015
