Texas Court Issues 60-Day Stay of Execution for John Hummel in Response to Coronavirus Crisis

Responding to esca­lat­ing health con­cerns caused by the COVID-19 coro­n­avirus pan­dem­ic, the Texas Court of Criminal Appeals (TCCA) has tem­porar­i­ly halt­ed the exe­cu­tion of John Hummel. In an order issued on March 16, 2020, the TCCA stayed Hummel’s exe­cu­tion, which had been sched­uled for March 18, for 60 days, say­ing the delay was nec­es­sary ​“in light of the cur­rent health cri­sis and the enor­mous resources need­ed to address that emergency.”

Hummel’s attor­ney had asked for the stay, argu­ing that the health cri­sis has imped­ed last-minute inves­ti­ga­tions in the case, and that bring­ing exe­cu­tion wit­ness­es into the prison would put vul­ner­a­ble peo­ple, espe­cial­ly pris­on­ers, at risk of con­tract­ing the virus. Three oth­er exe­cu­tions are sched­uled in Texas in the next 60 days, but it is not yet clear what action the court will take on those cases. 

In a March 13 fil­ing, Hummel’s attor­ney, Michael Mowla, argued that soci­etal dis­rup­tions relat­ed to the pan­dem­ic would impede final review of Hummel’s case and that mov­ing for­ward with the exe­cu­tion could endan­ger wit­ness­es, pris­on­ers, and prison staff. He also said that the absence of mem­bers of the exe­cu­tion team due to ill­ness could increase the risk of a botched exe­cu­tion. Noting that courts, the gov­er­nor, and the Board of Pardons and Paroles must all con­sid­er final appeals and clemen­cy pleas, Mowla said, ​“Disruptions in any one of those offices — or the ill­ness of a judge or deci­sion mak­er — could ren­der it impos­si­ble for Hummel to receive review.” 

Also on March 13, the TCCA issued a First Emergency Order Regarding the COVID-19 State of Disaster. The order grants all Texas courts dis­cre­tion to “[m]odify or sus­pend any and all dead­lines and pro­ce­dures … for a stat­ed peri­od end­ing no lat­er than 30 days” after the cur­rent State of Disaster declared by Governor Greg Abbott is lift­ed. The order man­dates sus­pen­sion of pro­ce­dures where nec­es­sary ​“to avoid risk to court staff, par­ties, attor­neys, jurors, and the pub­lic.” Legal experts said that the order was like­ly to cov­er pro­ce­dures such as exe­cu­tions, clemen­cy hear­ings, and the issuance of new death warrants. 

The court’s action is unusu­al but not unprece­dent­ed in Texas. On September 11, 2001, then-Governor Rick Perry grant­ed a 30-day reprieve of an exe­cu­tion sched­uled for that night. In 2017, a Bexar County court with­drew an exe­cu­tion date because the prisoner’s attor­ney lived in Harris County, which had declared a state of emer­gency in response to Hurricane Harvey. Both pris­on­ers were later executed. 

Both the Texas Court of Criminal Appeals and the U.S. Court of Appeals for the Fifth Circuit denied the sub­stan­tive claims raised in Hummel’s lat­est appeals. The Fifth Circuit reject­ed Hummel’s argu­ment that he was denied suf­fi­cient fund­ing for experts to bol­ster his clemen­cy peti­tion. Hummel, a mil­i­tary vet­er­an, sought fund­ing for men­tal health experts who could address the effect of his Post-Traumatic Stress Disorder. The Texas court denied claims relat­ing to defects with the exe­cu­tion war­rant and an argu­ment that the prosecutor’s office should have been dis­qual­i­fied from the case because Hummel’s tri­al lawyer was now a high-rank­ing offi­cial in the Tarrant County District Attorney’s office. The Fifth Circuit denied Hummel’s request for a stay due to the impact of COVID-19, call­ing con­cerns about the denial of final vis­its and the dis­rup­tion to court review ​“spec­u­la­tive.”

Death-penal­ty experts voiced sup­port for halt­ing exe­cu­tions, giv­en the unique chal­lenges pre­sent­ed by the glob­al pan­dem­ic. Rob Owen, a Chicago attor­ney who has rep­re­sent­ed death-row pris­on­ers in sev­er­al states, includ­ing Texas, told The Appeal, ​“There’s just a whole lot of pro­found prob­lems with decid­ing to go for­ward with exe­cu­tions in an envi­ron­ment where trav­el is impos­si­ble, com­mu­ni­ca­tions are restrict­ed, and the abil­i­ty of advo­cates to ful­ly exam­ine the cir­cum­stances of the case and make sure every­thing is legal and sound is compromised.” 

In an email to DPIC, Jerry Givens, who car­ried out 62 exe­cu­tions in his 17 years as the cor­rec­tion­al offi­cer in charge of Virginia’s elec­tro­cu­tions, wrote: ​“With this Coronavirus that has tak­en con­trol over our Country, exe­cu­tions should be the last thing on the list. Let us join togeth­er and pray that things will get better.”