Arthur granted 45-day stay

atmore - Less than seven hours before he was scheduled to be executed for the 1982 Colbert County slaying of Troy Wicker, Tommy Arthur was granted a 45-day stay Thursday by Gov. Bob Riley.

Arthur's execution was set for 6 p.m. Riley's order was issued at 11:15 a.m.

Riley stressed that the stay has nothing to do with the question of Arthur's guilt, and he intends for Arthur ultimately to be executed.

The governor said he issued the stay because the state is changing the manner in which it administers lethal injection, which is the form of capital punishment used in Alabama.

Riley said in a press release that the execution should proceed once the form of administering the injection is changed.

"The evidence is overwhelming that Thomas Arthur is guilty, and he will be executed for this crime," Riley said. "The decision to grant a brief stay is being made only because the state is changing its lethal injection protocol, and this will allow sufficient time for the Department of Corrections to make that change.

"It is my desire that, as soon as the stay has expired, justice will be administered to Thomas Arthur. I have encouraged the attorney general to make a motion with the Alabama Supreme Court for a new date of execution as soon as possible."

Arthur's daughter, Sherrie Stone, said she was awake all night Wednesday running through plans in her head, including plans for her father's funeral. Father and daughter were together Thursday at the prison saying their goodbyes when the stay was issued.

"We were in the visiting room," Stone said. "All of his personal belongings had been taken away and boxed up, and I was going to take them with me, and while we were sitting there, something just came over me. I had this feeling that we were going to get a stay.

"Five minutes later, he was called into an office and told what was going on. I think he was a little confused at first, and then relieved."

Arthur and his daughter say this isn't a postponement of the inevitable. They say it is a chance to continue their quest to push for testing on DNA that was taken from the Wicker crime scene.

Arthur's attorney, Suhana Han, has filed an appeal with the U.S. Supreme Court, asking for the DNA to be tested. That appeal remains active.

"The governor said the evidence is overwhelming," Stone said. "I dispute that. All the evidence was circumstantial and the physical evidence has never been tested. All we want is for this DNA to be tested and the truth to come out."

Arthur was moved back to death row and his personal belongings that had been boxed up were given back to him.

Clay Crenshaw, of the attorney general's office, has maintained that the DNA evidence wouldn't establish innocence, no matter what it shows. He agrees with Riley's office that the evidence against Arthur is overwhelming.

This is the second time Arthur has received a stay. He was scheduled to be executed at 12:01 a.m. on April 27, 2001. Three days before that date, a U.S. District Judge for the Court of Criminal Appeals issued the stay, saying Arthur should have the opportunity to offer evidence showing he is innocent in Wicker's death.

This second stay of execution is the latest chapter in a long-running fight from Arthur to avoid execution.

He was sentenced to death on Feb. 19, 1983, and has remained on death row since then.

Arthur's case has been tried three times because of appeals. In all three cases, he was found guilty. He requested the death penalty in order to have automatic appeals, according to court transcripts from his trials.

Those who have been involved in his case throughout the years expressed frustration and amazement at Arthur's Houdini-like ability to avoid the death sentence.

"He's led a charmed life," said Tuscumbia attorney James Patton, a former Colbert County district attorney who prosecuted Arthur.

"I just thought maybe they'd go ahead and do it, but they're going to let him go on for 45 days," Patton said. "Gov. Riley's not going to change his mind, as far as the execution. There are certain things that deserve death. This is one of them. I'm sure Riley will stick to his guns."

Still, after decades of watching Arthur elude capital punishment, Patton said of his execution, "I'll believe it when I see it."

Tuscumbia lawyer William Hovater, who was one of Arthur's defense attorneys, said he is not surprised by Riley's decision.

"If (Riley) thought (lethal injection) was being done wrong and the protocol needed to be changed, he did what he was morally obligated to do," Hovater said. "I'd say Tommy's dodged another bullet."

According to published reports, Daniel Lee Seibert, another death-row inmate, is scheduled to die by lethal injection on Oct. 25. It was unknown Thursday whether Arthur's stay would affect Seibert's case.

Riley's decision comes one day after the Alabama Supreme Court declined to issue a stay in Arthur's case. Arthur had requested the stay, on the heels of a Kentucky case. In that case, the U.S. Supreme Court stayed a Tuesday execution of a Kentucky inmate because of questions about lethal injection.

The questions surround the effectiveness of drugs administered before the lethal drug. The first drug is supposed to prevent the inmate from feeling pain during the lethal dose. The second dose paralyzes the inmate. The question surrounds the theory that no one can tell whether the inmate is in pain during the lethal injections, because of the paralysis.

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

Bernie Delinski can be reached at 740-5739 or bernie.delinski@timesdaily.com.

Montgomery Bureau Chief Dana Beyerle contributed to this report.