In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Alabama: What's next for Tommy Arthur after escaping execution 7th time?

Tommy Arthur
Tommy Arthur
As the clock ticked towards 6 p.m. last Thursday, death row inmate Tommy Arthur began to think he wouldn't survive the seventh time Alabama was set to execute him.

"To say the very least I was concerned," Arthur said in an interview Monday with Al.com. "At 5 o'clock I had reconciled that they were going to kill me."

But shortly before 5:30 p.m. Thursday, minutes before reporters were to be loaded onto a van to be taken over to the death chamber at Holman Correctional Facility to witness Arthur's execution, a prison spokesman announced a two-hour delay. The U.S. Supreme Court wanted more time to review Arthur's appeal and the prison commissioner agreed, the spokesman said.

That time passed and by 9:30 p.m. the U.S. Supreme Court issued a temporary stay, followed at 10:55 p.m. by a stay until further notice. The execution was off for that day anyway.

"I was so elated that the justices saw fit to put it on hold," Arthur said.

What was the first thing Arthur did when he finally found out that he wouldn't be executed that night?

"I thanked God," Arthur said.

Arthur, 74, said he also thanks his volunteer team of lawyers (the state doesn't pay for death row appeals), particularly Suhana Han who has represented him since 2003. He said they have worked hard and into the nights trying to save him.

For the 7th time in his 33 years on death row he had been in the holding cell next to the death chamber waiting for his execution, Arthur said. He did no eat last Thursday and had refused a final meal.

"I was pumping too much adrenaline. I wasn't hungry," Arthur said.

Arthur was convicted at 3 trials and sentenced to death each time for the 1982 murder-for-hire shooting death of Troy Wicker.

What's next for Arthur?

The U.S. Supreme Court in its order Thursday stated its stay of execution will remain in place pending Arthur's request for the court to review his appeals. If the court refuses to review his appeals, the stay would automatically go away.

If the court does grant a review then the stay would continue until a final decision is made on his case, according to the SCOTUS order.


On Monday the U.S. Supreme Court stated Arthur's request for a writ of certiorari - or review - would be distributed for the court's conference on Nov. 22.

At that conference the court will decide whether to consider Arthur's appeal of the 11th Circuit Court of Appeals denial of his challenge to Alabama's lethal injection method of execution. It also will consider whether to review his appeal of the Alabama Supreme Court's denial of his appeal that Alabama's death sentence law is like the one in Florida that SCOTUS struck down in January.

The decision on whether the U.S. Supreme Court will review either of Arthur's appeals, or none at all, will likely be issued the following Monday, Nov. 28.

In order to review a case, at least four justices must agree, said Robert Dunham, executive director of the Death Penalty Information Center.

If SCOTUS doesn't review

If the U.S. Supreme Court doesn't grant a review on either one then the Alabama Attorney General's Office could go back to the Alabama Supreme Court to get Arthur's 8th execution date set. The Alabama Supreme Court sets an execution date no earlier than 30 days from the date of its order.

But not granting a review doesn't mean the appeal doesn't lack merit, Dunham said. There is also a possibility that another similar appeal, with similar issues, could come along and the court decides to hold Arthur's case pending a decision in the other one.

If SCOTUS does review

But if the U.S. Supreme Court does grant a review of Arthur's appeals, then any execution would likely be stayed off until later next year - or never depending on its decision.

SCOTUS might have time for briefings, arguments, and possibly a decision in the case by the end of its term on June 30, Dunham said. But it's also possible it wouldn't be heard until the following term, which begins Oct. 1, 2017, he said.

The U.S. Supreme Court also could wait until a ninth justice is on board after the death earlier this year of Justice Antonin Scalia, Dunham said.

"Four votes are enough to grant review, but not enough to grant relief," Dunham said. "I think what he (Arthur) needs to hope for is that whoever is on the court at the time thinks his claims are meritorious," and he can get five of an eight or nine-member court to agree, he said.

"It's not necessarily a liberal or conservative issue," Dunham said.


Based on the SCOTUS order for the stay of execution it isn't entirely clear whether Arthur might have the votes to win an appeal. He did get the needed 5 votes for a stay, but one of those votes was a "courtesy."

Chief Justice John Roberts stated in the order staying Arthur's execution that while he didn't believe that Arthur's appeal "meets our ordinary criteria for a stay. This case does not merit the Court's review: the claims set out in the application are purely fact-specific, dependent on contested interpretations of state law, insulated from our review by alternative holdings below, or some combination of the 3."

"Four Justices have, however, voted to grant a stay. To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy," Roberts stated. "Justice Thomas and Justice Alito would deny the application."

Roberts only discusses the leanings of seven of the eight members of the current court. It's unclear which ones he is referring to other than his, Alito and Thomas' votes.

Method of execution

One of the issues Arthur is appealing is Alabama's lethal injection method of execution.

A federal judge tossed out Arthur's lawsuit challenging the state's new lethal injection drug combination as cruel and unusual punishment.

In a 2-1 decision last week a panel of the 11th Circuit Court of Appeals agreed with the lower court judge and also refused Arthur's request for a stay. In making challenges to a method of execution, inmates must present alternatives they believe would be a more humane way of execution.

11th Circuit Judge Charles Wilson, who was the lone dissenter, said the execution should have been stayed in order for Arthur's appeals on his lethal injection challenge. "Due to the scarcity of and secrecy surrounding lethal injection drugs, it is all but impossible for a prisoner to set forth a viable lethal-injection-based alternative," Wilson wrote in his dissent in Wednesday's opinion. "The Majority's decision therefore checkmates countless Alabama and Florida prisoners, nullifying their constitutional right to a humane execution."

Wilson also stated that the majority in the ruling determined that Arthur's suggestion of a firing squad was not feasible and readily implemented because Alabama law does not authorize the firing squad.

"Arthur should be permitted to amend his complaint to include the firing squad as an execution alternative to Alabama's lethal injection protocol. The firing squad is a potentially viable alternative, and Arthur may be entitled to relief under Baze and Glossip (U.S. Supreme Court ruling) based on that method of execution," Wilson wrote.

Pittman said the Tommy Arthur case prompted him to introduce the bill.

In response to Arthur's stay, state Sen. Trip Pittman, R-Montrose, announced on Friday that he was filing a bill that would authorize Alabama to carry out executions by firing squad.

2 other states - Utah and Oklahoma - have the firing squad as a backup to lethal injection.

States, including Alabama, have had to turn to different drug combinations for their lethal injections as pharmaceutical companies have refused to have their drugs used in executions.

Arthur's other appeal to SCOTUS involves his claim challenging Alabama's death penalty sentencing law as being like the one in Florida that SCOTUS struck down in January. Alabama's Attorney General, however, have argued that the state's law has already been declared constitutional by the Alabama Supreme Court this year and SCOTUS in 1994.

But a few justices on the U.S. Supreme Court have noted in opinions that it might be time to take another look at the Alabama law. SCOTUS also sent back 3 Alabama death row inmate cases to the Alabama Court of Criminal Appeals earlier this year to review in light of its Florida decision.


Arthur admits he hasn't led the best life and blames stupidity, a bad temper, and alcohol for his troubles. But he says he didn't kill the man whose death landed him on death row.

Arthur admits he killed his sister in law in 1977 and pleaded guilty to it. But he says it was an accident - that he was going to shoot over her head when she stood up.

He also admits he shot a prison guard, escaped, and robbed a bank in Knoxville, Tenn., in 1986 while awaiting his 2nd capital murder trial in the 1982 shooting death of Troy Wicker.

Arthur's daughter also recently told the Times Daily newspaper in Florence that her dad was abusive. "He beat and shot my 1st stepmother. He beat my 2nd stepmother, and shot and killed her sister and almost killed her cousin," Sherrie Arthur Stone told the Times Daily.

Arthur refused to contradict his children on that point. "I love my children ... I do have a bad temper," he said.

But Arthur repeatedly denied having killed Troy Wicker.

"I promise you I did not kill Troy Wicker. And if they kill me it will be outright murder," Arthur told the reporter.

Besides his appeals, Arthur most of all wants a court to look at his claims of innocence.

Arthur and his lawyers have argued that there is no physical evidence - such as fingerprints or DNA - that points to him.

Wicker's wife, after testifying a burglar had raped her and killed her husband at her trial, later testified at one of Arthur's trials that she had paid Arthur $10,000 of insurance money to kill her husband. Wicker was in a romantic relationship with Arthur, who was out on work release from the killing of his sister-in-law when Troy Wicker was killed.

Arthur said he wants a full hearing on his innocence claims, including DNA testing on evidence that hasn't been tested yet. "What are they scared of?" he said.

Prosecutors also have lost evidence, including the rape kit on Judy Wicker, Arthur said.

Dunham wasn't sure if Arthur holds the record for number of executions that have been stayed. But, he said, "it is very unusual to have had that many execution dates that have been halted."

Source: al.com, November 9, 2016

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