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Clarence Thomas postpones Alabama's execution of 74-year-old man

by Tess Owen
Nov 3 2016, 10:40pm

The state of Alabama was set to execute 74-year-old Thomas Douglas Arthur Thursday night at Holman Correctional Facility, but U.S. Supreme Court Justice Clarence Thomas issued a temporary stay of execution.

“It is ordered that execution of the sentence of death is hereby stayed pending further order of the undersigned or of the Court,” Thomas wrote.

Originally scheduled for 6 p.m. ET, the execution was delayed for two hours so that the Court could consider the appeal. But two hours came and went. It wasn’t until about 10:30 p.m. that Thomas issued the stay.

Arthur has spent more than three decades on death row for the 1982 contract killing of Troy Wicker, who was shot while he slept in his bed. Wicker’s wife testified that she paid Arthur $10,000 to kill her husband.

Tommy Arthur in an undated photo

Arthur, however, has maintained his innocence. Over the years, his lawyers unsuccessfully argued for DNA tests that they said could exonerate Arthur, whose execution had been scheduled six times previously. Each one of those times, he received a stay.

Complicating his case, he shot a guard while escaping from jail in 1986.

Arthur said he wanted to be executed by firing squad, not lethal injection, after a spate of botched executions using the drug midazolam left some inmates gasping for air and writhing on the gurney. His appeal argued that the lethal injection protocol constituted cruel and unusual punishment. He lost the appeal, however, and Alabama proceeded with the plan to execute him using midazolam.

The execution comes amid scrutiny over Alabama’s death penalty process. Of the 34 states that allow the death penalty, Alabama is the only one where judges are permitted to override jury verdicts and impose a death sentence. In January, the U.S. Supreme Court ruled Florida’s similar sentencing scheme was unconstitutional.

In September, Alabama’s Supreme Court upheld its sentencing scheme.

According to the Equal Justice Initiative, about 20 percent of the 199 people currently on Alabama’s death row were sentenced via judicial override. It was not used in Arthur’s case, however, because he asked the jury to sentence him to death, reportedly in hopes that he could spend more time with his children during visitation hours.

Alabama is also the only state that accepts death sentences from non-unanimous juries. Because the jury in Arthur’s case did not unanimously agree that he should be sentenced to death, Arthur’s lawyers filed a petition requesting that his execution be vacated or stayed. That request was also denied.

In 2008, a man named Bobby Ray Gilbert confessed to murdering Wicker, but a state court found that Gilbert and Arthur had conspired to submit a fake confession. Crime scene testing found no DNA link to either man. Arthur’s lawyers argued that the state of Alabama lost the DNA kit that may have exonerated him.

Executions nationwide are currently at a 25-year low.