Arthur appeal denied

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, 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 man broke into their home, raped and beat her, and that when she came to, her husband was dead.

She later testified she hired Arthur to kill her husband.

Arthur lost one of his latest appeals when a panel of federal judges said he waited too 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 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.

TimesDaily Staff Writer Tom Smith contributed to this report.