Tommy Arthur (pic­tured), an Alabama death-row pris­on­er whose 35-year jour­ney through the court sys­tem has frus­trat­ed both pro­po­nents and oppo­nents of the death penal­ty, is sched­uled to be exe­cut­ed on May 25, 2017, the eighth time Alabama has set an exe­cu­tion date in his case. 

Arthur — whose con­vic­tion and death sen­tence has twice been over­turned by the courts and was sen­tenced to death by his tri­al judge based upon a non-unan­i­mous jury sen­tenc­ing rec­om­men­da­tion — has stead­fast­ly main­tained his inno­cence in the 1982 mur­der of Troy Wicker. Most recent­ly, an even­ly divid­ed U.S. Supreme Court issued a stay of exe­cu­tion four hours after Arthur’s exe­cu­tion was set to begin on November 3, 2016, so the Court could con­sid­er whether to review Arthur’s chal­lenge to Alabama’s use of the con­tro­ver­sial drug mida­zo­lam and his request to be exe­cut­ed by fir­ing squad. The Court ulti­mate­ly declined to review both that claim and Arthur’s sep­a­rate chal­lenge to the con­sti­tu­tion­al­i­ty of Alabama’s non-unan­i­mous sentencing practices. 

Arthur has repeat­ed­ly raised inno­cence claims, seek­ing new foren­sic test­ing of evi­dence from his case. Judy Wicker, the wife of Troy Wicker, who was charged with hir­ing Arthur to kill her hus­band, tes­ti­fied at her tri­al that her hus­band had been mur­dered by a bur­glar who beat and raped her. After Ms. Wicker’s con­vic­tion, she changed her tes­ti­mo­ny when a pros­e­cu­tor, who had pre­vi­ous­ly rep­re­sent­ed her at a parole hear­ing, offered her ear­ly release if she tes­ti­fied against Arthur. 

The rape kit tak­en from Ms. Wicker at the time of the mur­der was lost or destroyed with­out being test­ed for DNA and, accord­ing to Arthur’s cur­rent lawyer, Suhana Han, “[n]either a fin­ger­print or a weapon, nor any oth­er phys­i­cal evi­dence con­nects Arthur to the mur­der of Troy Wicker.” Hairs found near the vic­tim have also nev­er been test­ed with mod­ern DNA technology. 

Arthur has also argued that his tri­al coun­sel was inef­fec­tive, and con­tin­ues to lit­i­gate issues relat­ing to Alabama’s lethal injec­tion pro­to­col. He cur­rent­ly has an emer­gency motion pend­ing before the U.S. Court of Appeals for the 11th Circuit, chal­leng­ing the state’s planned use of mida­zo­lam, a drug that has been linked to many prob­lem­at­ic exe­cu­tions, includ­ing that of Ron Smith in Alabama in December 2016. He has also chal­lenged the state’s refusal to dis­close records relat­ed to the Smith exe­cu­tion, which his lawyers say may pro­vide crit­i­cal evi­dence for his lethal-injection challenge. 

The Alabama Court of Criminal Appeals issued a pre­lim­i­nary rul­ing in Arthur’s favor on a sep­a­rate issue on May 23, revers­ing a Montgomery Circuit judge’s order reject­ing Arthur’s claim that the leg­is­la­ture, rather than the Department of Corrections, should deter­mine the state’s exe­cu­tion method. But that pro­ce­dur­al rul­ing will not delay his exe­cu­tion. His motion stat­ed, The role of the leg­is­la­ture is par­tic­u­lar­ly crit­i­cal giv­en the con­tro­ver­sial nature of the ADOC’s cur­rent mida­zo­lam-based exe­cu­tion pro­to­col. …The choice of the first drug (mida­zo­lam) to be used is crit­i­cal, because with­out an effec­tive anes­thet­ic, the sec­ond and third drugs would cause unbear­able pain. But the drug the ADOC chose (in secret), mida­zo­lam, is not used in med­ical prac­tice as a gen­er­al anes­thet­ic; rather, it is an anti-anx­i­ety seda­tive in the same drug fam­i­ly as Valium and Xanax, and its use in lethal injec­tion has been extremely problematic.” 

[UPDATE: Alabama exe­cut­ed Thomas Arthur near mid­night on May 25. He was pro­nounced dead at 12:15 a.m. on May 26. Media wit­ness­es report­ed no vis­i­ble indi­ca­tors that the drugs had failed.]

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