On his eighth scheduled execution date, Alabama Death Row inmate Tommy Arthur was put to death by lethal injection for a 1982 murder for hire.
Arthur made a thumbs up gesture with his left hand to his daughter Sherrie Stone who was in the witness room between Arthur's attorney Suhana Han and Jordan Razza, a long-time legal adviser to Arthur. At one point he also winked toward his daughter.
Arthur, his voice quivering and choking up, read out the names of his children. "I'm sorry I failed you as a father. I love you more than anything on Earth," he said.
He did not admit to or mention anything about the crime that landed him on death row - the shooting death of Troy Wicker Jr.
The execution began about 11:50 p.m., ten minutes before the death warrant was to expire, said Alabama Department of Corrections Commissioner Jeff Dunn.
As long as the execution begins before midnight then the Alabama Attorney General stated they should complete the execution, Dunn said. "It went exactly according to protocol," he said.
The execution was to have begun at 6 p.m. but was delayed by appeals to the U.S. Supreme Court. If the execution had not begun by midnight, the state would have been forced to seek another execution date.
The execution was in contrast to the Dec. 8 execution of Alabama Death Row inmate Ronald Bert Smith, who for 13 minutes heaved and gasped for breath and two consciousness tests were performed before the lethal drugs were administered. Smith's attorneys called it "botched" but Dunn said it too had gone to protocol.
Arthur slowly drifted off after they began administering the first of three drugs about 11:50 p.m. and his breathing became more shallow. He was pronounced dead at 12:15 a.m.
Gov. Kay Ivey's office issued this statement minutes after Arthur's death:
"How to proceed when faced with a potential execution is one of the most difficult decisions I will ever have to make as governor. After much prayer and careful and deliberate consideration, I thought it best to allow the decision of a jury of Tommy Arthur's peers to stand. In allowing the execution to proceed this evening, the rule of law was upheld, and Mr. Wicker's family can finally rest knowing that his murderer has faced justice.
"Three times Tommy Arthur was tried, convicted, and sentenced to death. Each time his case was reviewed thoroughly at every level of both our state and federal courts, and the appellate process has ensured that the rights of the accused were protected.
"No governor covets the responsibility of weighing the merits of life or death; but it is a burden I accept as part of my pledge to uphold the laws of this state. Mr. Arthur was rightfully convicted and sentenced, and tonight, that sentence was rightfully and justly carried out."
Alabama Attorney General Steve Marshall said he hoped the family of Troy Wicker can begin to recover.
"Thirty-four years after he was first sentenced to death for the murder of a Colbert County man, Thomas Arthur's protracted attempt to escape justice is finally at an end. Most importantly, tonight, the family of Troy Wicker can begin the long-delayed process of recovery from a painful loss."
Wicker's two sons witnessed the execution, but had no statement, prison officials said.
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A prison spokesman says that the execution is back on for tonight after the U.S. Supreme Court lifted a temporary stay of Alabama Death Row inmate Tommy Arthur.
The decision came down about 10:40 p.m. Thursday.
U.S. Supreme Court Justice Sonia Sotomayor dissented from the majority opinion denying a stay despite Arthur's attorneys challenges to the method of execution using the controversial drug midazolam and whether Arthur's attorneys should have access to a phone during the execution. The number of justices who voted for or against the stay was not included in the order.
"Alabama plans to execute Thomas Arthur tonight using a three-drug lethal-injection protocol that uses midazolam as a sedative. I continue to doubt whether midazolam is capable of rendering prisoners insensate to the excruciating
pain of lethal injection and thus whether midazolam may be constitutionally used in lethal injection protocols," according to her dissent. "Here, the State has--with the blessing of the courts below-- compounded the risks inherent in the use of midazolam by denying Arthur's counsel access to a phone through which to seek legal relief if the execution fails to proceed as planned."
Arthur's attorneys had argued that they should have a constitutional right to access to the courts through the execution. "Its (the court's) action means that when Thomas Arthur enters the execution chamber tonight, he will leave his constitutional rights at the door," Sotomayor stated in her dissent.
Attorneys for Arthur had asked the court this afternoon to halt the execution.
The prison system is carrying reporters over to the prison to witness the execution this evening. Temporary stays like this are not uncommon, with SCOTUS granting several temporary stays before the execution either happens or is permanently stayed.
The death warrant for Arthur is only valid for May 25. So if the temporary stay had lasted past midnight, the state would have to seek a new execution date once the stay is lifted.
The 11th Circuit Court of Appeals and the Alabama Court of Criminal Appeals this afternoon denied requests from Arthur's attorneys to halt the execution.
Arthur was set to be executed at 6 p.m. at the Holman Correctional Facility in Atmore for the 1982 murder-for-hire of Troy Wicker Jr. in Muscle Shoals.
It is the eighth time since 2001 Alabama has set an execution date for Arthur, nicknamed the "Houdini of Death Row" for his escape from the first seven times - often at the last hour - mainly due to legal wrangling by his attorneys.
Arthur, 75, is the second oldest inmate on death row. He also is the third-longest serving inmate among Alabama's 184 death row inmates.
The inmate's attorneys haven't heard whether Gov. Kay Ivey will stop the execution, which would be her first execution as governor.
However, Ivey today informed Arthur's attorney she was once again denying their request for DNA testing for hair samples associated with the case. "DNA testing of the hair samples would serve no purpose but to confirm a fact that has already been presented to the three separate juries, all of whom convicted Arthur of capital murder," wrote Ivey's general counsel, Bryan Taylor.
7:35 p.m. Arthur's attorneys file reply briefs to SCOTUS regarding Alabama Attorney General's arguments that their petition and request for another review of their lethal injection challenges and stay of executions should be denied.4:11 p.m.
5:30 p.m. Associate Justice Clarence Thomas granted the temporary stay regarding the appeal on allowing Arthur's attorneys to have access to a cell phone. According to a press release from Arthur's attorneys Sherrie Stone, the daughter of Arthur, is expected to witness her father's execution and will be accompanied by Mr. Arthur's lead counsel, Suhana Han. Stone may be available to talk briefly to media on Thursday night.
5 p.m.
Arthur's attorneys filed a second request for stay of execution to the U.S. Supreme Court pending action on their petitions - one for a review of their claims that Alabama's method of execution represents cruel and unusual punishment and the other on allowing the attorneys to have cell phones.
The method of claims are that the drug midazolam doesn't sedate the inmate enough so he won't feel pain. It is an argument already shot down by the U.S. Supreme Court but Arthur's attorneys say there have been other examples since then.
"In order to adequately brief this Court on the important Questions
Presented, Mr. Arthur requires a temporary stay of execution," his attorneys argue. "If it is not granted, Mr. Arthur will suffer the most irreparable injury imaginable: he will be strapped to a gurney, administered a drug that Alabama knows will not render him insensate, and then, injected with a succession of drugs that will paralyze and suffocate him, and then induce cardiac arrest in a way that
has been described as "the chemical equivalent of being burned at the stake."
The Alabama Attorney General's Office in its reply noted that Arthur's lethal injection claims had been rejected by the Supreme Court before.
"Given that Arthur today is facing the eighth setting of his execution for the brutal murder of Troy Wicker, he is well versed in the inequitable art of filing eleventh-hour lawsuits on the eve of his execution dates," the Attorney General's Office stated. As far back as August 2007, Arthur filed a last-minute method-of-execution challenge (his second), which the district court dismissed on the doctrine of laches "because the plaintiff unreasonably delayed in bringing this action," where Arthur waited until after the State moved to set his execution date," the Attorney General's Office stated.
"Three months later, Arthur's third (challenge) was also dismissed as meritless, previously litigated, and unreasonably late," the Attorney General's Office stated. "Undaunted, Arthur has continued to employ this same tactic of filing to stop his execution."
4:45 p.m.
Alabama Department of Corrections spokesman Bob Horton gave this rundown of what has been happening at the prison and with Arthur in the past day.
At 4 p.m. Alabama Prisons Commissioner Jeff Dunn and warden Cynthia Stewart met with Wicker's two sons, who will be in the victim witness room, Horton said.
Arthur had no visitors in the past 24 hours but called a friend, a son and daughter, and his attorneys, Horton said. Arthur also refused a breakfast and a final meal.
Arthur's request to view a photo of his children during the execution was granted, Horton said.
Arthur has been allowed to view a TV outside his holding cell where he was moved to on Tuesday, Horton said.
Midazolam concerns
Arthur and his attorneys are seeking a stay of execution so they can further litigate his challenges on two issues.
On Tuesday, Arthur won a legal victory when the Alabama Court of Criminal Appeals reversed a judge's ruling that rejected Arthur's claim that the Legislature, not the prison system, should decide on the method and drugs used in executions. Arthur's attorneys then quickly filed an emergency request for a stay of execution to that court, stating that his execution should wait until litigation over their claims that the legislature should select the lethal injection drugs is completed.
Arthur's appeal to the U.S. 11th Circuit, based on Arthur's challenge to Alabama's method of execution that includes the drug midazolam as one of the three drugs, was denied earlier this afternoon.
Death penalty opponents, and other inmates and their attorneys will be closely monitoring the execution because of the controversial sedative midazolam used by Alabama and several other states in their lethal injection drug combinations. Lawyers have argued midazolam does not sedate the inmate enough to not feel the burning pain of the other drugs administered to stop the heart and lungs.
The 11th Circuit and U.S. Supreme Court have previously denied Arthur's and other inmates' challenges in Alabama and other states to lethal injection method that include midazolam. The Inmates cited problems - inmates struggling on gurneys - with executions in nation states using midazolam.
But in their current appeal Arthur's attorneys argue there have been problems with more recent executions in Alabama and other states since Arthur's previous challenges to the state's lethal injection method were rejected.
Among those executions cited in their current appeal is the Dec. 8 execution of Alabama Death Row inmate Ronald Bert Smith, Smith heaved and appeared to be gasping for breath for about 13 minutes after being injected with midazolam. He was given two consciousness tests -- one to make sure an inmate is sedated is routine -- before the final two drugs were administered.
Smith's lawyers called the execution "botched," but Alabama Department of Corrections Commissioner Jeff Dunn said the prison system followed its protocol. Prison officials, however, have refused to provide attorneys with records of executions, according to the court documents.
Arthur's lawyers argue in their latest appeal that Arthur faces "a nightmarish death ... conscious but entirely paralyzed, unable to move or scream his agony."
Cell Phone appeal
Wednesday night the 11th Circuit issued a ruling that affirms a lower court's denial of a request by Arthur's attorneys to have access to a cell phone or land line phone while in the execution witness room so they could call a court in case there is a problem.
Arthur's attorney Suhana Han this morning filed an appeal to the U.S. Supreme Court of the 11th Circuit's ruling on the cell phone issue.
Claims innocence
Arthur, while admitting to a previous murder in 1977, he maintains his innocence in the 1982 slaying of Wicker. He and his lawyers say there is no physical evidence such as DNA or fingerprints that link him to Wicker's death.
At first, Wicker's wife Judy claimed she had been raped and her husband killed by a burglar wearing a wig. But she was later convicted in her husband's death and sentenced to life in prison. She later testified at one of Arthur's three trials that she paid Arthur $10,000 of her husband's life insurance money to kill her husband.
Judy Wicker and Arthur were in a romantic relationship. Arthur at the time was in a community corrections program, working at a mobile home dealership, for his guilty plea in the shooting death of his sister and the wounding of another woman five years earlier. He had been sentenced to life for that crime.
Judy Wicker was paroled after serving about 10 years of her life sentence.
Arthur denies Judy Wicker's claims and contends he was involved in Troy Wicker's death. He has repeatedly tried to have evidence tested for DNA that he says was never tested. Gov. Ivey denied the testing of a wig (allegedly worn by the killer), which state officials say had been tested before in 2009 and found not to contain any genetic material.
"I am not guilty," Arthur recently wrote to AL.com. He claimed the state will be "murdering" him if they go through with the execution.
Alabama prosecutors and Wicker's family has said Arthur has had enough appeals.
"For many years, Thomas Arthur has abused the judicial process by heaving frivolous and baseless claims on the courts at the last minute in an effort to delay his lawful execution for a heinous crime he committed in 1982," Alabama Attorney General Steve Marshall recently wrote in March after one of Arthur's appeals to block another execution date from being set. "His latest filing is simply more of the same. Arthur's execution has already been set seven times. His conviction and sentence were affirmed by the courts years ago, and last month (February) the United States Supreme Court once again declined to hear his claims. Justice demands that his execution date should once again be set," he stated.
Vicki Wilkerson, a niece to Troy Wicker told AL.com in an email that: "There are no words to describe the living hell that this has been for the Wicker family. We are hoping and praying that the execution is not delayed any further."
Timeline of Arthur's case:
- On Feb. 1, 1982, police found Wicker, of Muscle Shoals, shot to death in his bed -- a gunshot wound to his right eye.
- At the time of the Wicker murder, Arthur was serving at a Decatur work release center for a conviction in the 1977 murder of his sister-in-law, Eloise West, in Marion County. Another woman was wounded. Having two murder convictions in that short a span made him eligible for the death penalty.
- Arthur was convicted of capital murder in 1983.
- In 1985, Arthur's conviction in the Wicker case was overturned because details of the earlier murder had been introduced at his trial.
- On Jan. 27, 1986, while awaiting retrial, Arthur escaped from the Colbert County jail by shooting a jailer in the neck with a .25 caliber pistol and forcing another jailer to open his cell. He was caught a month later by FBI agents in Knoxville, Tenn., after robbing a bank.
- Arthur was retried for the Wicker murder in 1987, with the case moved to Jefferson County because of publicity. He was convicted, but the conviction was again overturned. Wicker's wife at first claimed she was raped by a burglar who then killed her husband. But she was later convicted in the case and she testified at a later trial for Arthur that she had sex with Arthur before the shooting and then paid him $10,000 from her husband's life insurance policy after the killing.
- Arthur was tried again in Jefferson County and convicted in 1991. That verdict was upheld.
- Before he was sentenced, Arthur asked jurors to recommend the death penalty. He said that he did not have a death wish, but that the sentence would provide more access to appeals. A lawyer for the state at that time said Arthur "knows how to work the system."
- Tuscumbia attorney William Hovater, who was appointed to defend Arthur after he fired his first two attorneys and later escaped from the Colbert County Jail, told a reporter after one trial that he had worked a plea agreement for Arthur to be sentenced to life without parole, if he pleaded guilty. Arthur declined. "He never admitted that he did it," Hovater told a reporter.