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Final court order awaited as state execution nears

By Garry Mitchell
Associated Press Writer

MOBILE — A week before the scheduled lethal injection of Tommy Arthur, questions about DNA testing in his case were before a federal appeals court, but Gov. Bob Riley rejected a call to stay the execution to allow the DNA test.

A state's attorney also said Thursday he hopes a federal judge's ruling that halted a lethal injection in Tennessee would not impact Alabama's execution procedures.

The 11th U.S. Circuit Court of Appeals, which rejected Arthur's lethal injection challenge on Monday, is still weighing a DNA claim in his case. Arthur, now 65, was convicted in the Feb. 1, 1982 murder-for-hire shooting death of Troy Wicker, 35, of Muscle Shoals.

A stall attempt?

A spokesman for Riley on Thursday accused Arthur's supporters at the New York-based Innocence Project of attempting to stall the execution by bringing the DNA issue to his office. Riley refused to meet with the group earlier this week and has no current plans to intervene in Arthur's execution, said Jeff Emerson, the governor's communications director.

On the matter of lethal injection, a three-judge panel of the Atlanta-based 11th Circuit ruled 2-1 as it upheld a district court's dismissal of Arthur's challenge to the procedure. The majority said there was "no justification" for Arthur's failure to file his lethal injection challenge earlier to allow sufficient time for full court review on the merits of his claim.

U.S. Circuit Judge Rosemary Barkett, in a dissent, said the lower court made a mistake in refusing to hear Arthur's challenge simply because he failed to file a claim as soon as the Alabama Legislature changed the method of execution to lethal injection in 2002.

In Nashville, a federal judge halted an execution set for next week, ruling that Tennessee's new lethal injection procedures are unconstitutional, presenting "a substantial risk of unnecessary pain."

Assistant Attorney General Clay Crenshaw, Alabama's capital litigation chief, said Tennessee joins other states where lethal injection challenges have been filed.

"There are a lot more decisions on the other side that have ruled that lethal injection is constitutional," Crenshaw said.

He said the Tennessee ruling was critical of the qualification of the emergency medical technicians.

"That's not a problem in Alabama," he said. He said the EMTs at Alabama executions have "certification to install IV lines" for the inmate.

Arthur has been on death row at Holman prison near Atmore about 16 years after being convicted for capital murder and sentenced to death in 1992 at his third trial.

Victim's wife paroled

The victim's wife, Judy Wicker, now 60 and paroled from a life sentence in her husband's murder after serving 10 years, testified that she began a sexual relationship with Arthur after he agreed to kill her husband and that she paid him $10,000 for the slaying.

She initially said a black man broke into their home, raped and beat her, and that when she came to, her husband was dead. Arthur's supporters claim she changed her story and implicated Arthur to protect her chance for parole.

The prosecution had 13 witnesses, many of whom corroborated Judy Wicker's testimony, according to court documents.

The Innocence Project, which does not represent Arthur and does not have a position on his guilt or innocence, said DNA testing in his case could show whether her initial story about the rape was accurate.

Representatives from the Innocence Project said Riley refused to meet with them earlier this week on the DNA request.

"Rather than looking at the science, he is burying his head in the sand," Innocence Project Co-Director Peter Neufeld said in a statement.

critical of the governor.

In an e-mail Thursday to The Associated Press, Emerson, Riley's spokesman, wrote: "The entire premise of his request is that DNA testing could potentially confirm Judy Wicker's original story. Yet she herself admitted her original story was a lie."

He continued: "All the evidence — all of it — points to his guilt and there is no credible evidence — none — that anyone but Arthur committed this murder. This request is merely a tactic to delay his execution."

He said Riley and his legal staff have "thoroughly reviewed this case. He has no current plans to intercede in this scheduled execution."

Arthur's appeals attorney, Suhana S. Han of New York claims that no evidence against Arthur has undergone DNA testing. Han has requested access to evidence so it can be tested at no cost to the state.

State prosecutors contend such a move would not change the outcome of Arthur's trial, saying Arthur received a fair trial and no evidence was withheld from the defense.

The federal district court also ruled that granting Arthur access to physical evidence, "the testing of which would not have altered the outcome of his trial, would be of little or no probable value."

Arthur, who was serving a sentence for another murder at the time of his arrest in the Wicker killing, exhausted his state and federal appeals when the Supreme Court denied a review on April 16. That led to his filing civil suits for DNA evidence and a challenge to lethal injection.

The anti-death penalty Amnesty International USA also protested Arthur's scheduled execution.

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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