Arthur's stay of execution denied

MONTGOMERY - A three-judge panel of the 11th U.S. Circuit Court of Appeals on Friday denied a stay of execution for convicted murderer Tommy Douglas Arthur.

Arthur, 65, was convicted for the 1982 contract killing of Troy Wicker, of Muscle Shoals. Arthur, who has said he is innocent of the crime, is scheduled to die by lethal injection at Holman Prison near Atmore on Thursday. Arthur has been on death row for 25 years.

"Notwithstanding what the courts have held, in a civilized society, how can we allow a man to be executed without even allowing DNA testing that could prove his innocence?" said Suhana Han, Arthur's attorney.

Han said the state ought to wait for the outcome of a federal lawsuit scheduled to go to trial in October that challenges Alabama's lethal injection method of execution as cruel and unusual punishment.

Han said although the state of Alabama insists that DNA testing doesn't bear on Arthur's culpability, "We disagree, and we're willing to pay for DNA testing."

"Reliable science can resolve this dispute, but the state of Alabama is afraid of the truth," she said. "The truth is the truth - no matter how many years later it emerges."

Clay Crenshaw, head of the attorney general's capital litigation section, said if Arthur had wanted DNA testing, he should have requested it years ago. "We think it's the correct ruling," he said of the judges' decision.

Crenshaw said Arthur's attorney was informed in oral arguments in 2004 that she could request DNA testing but that she waited only a few months before his scheduled execution date to request it.

The three appellate judges said a lower federal district court did not abuse its discretion in dismissing Arthur's request to allow DNA testing that was not available in the 1980s.

"There was no justification for Arthur's failure to bring his request for physical evidence for DNA testing earlier to allow sufficient time for full adjudication of the merits of this claim," the judges said.

On Monday, the same panel of judges in a 2-1 vote declined to halt Arthur's scheduled execution based on his challenge of the constitutionality of lethal injection, saying he waited too long, "especially given the strong presumption against the grant of equitable relief."

The judges said Friday that the lower court also did not abuse its discretion in denying Arthur's motion to alter or amend the death penalty based on newly discovered evidence.

Since the lower court judge was upheld, Arthur's motion for a stay of execution pending appeal was denied as moot, the judges said in a 19-page opinion.

Troy Wicker's widow, Judy Wicker, who Arthur had known since they were both young, testified that she hired Arthur to kill her husband. Wicker, who is now 60 years old, has served time for that crime.

Dana Beyerle can be reached at (334) 264-6605 or dtb123@aol.com.

Tom Smith can be reached at 740-5757 or tom.smith@timesdaily.com.