Texas Court Issues Nation’s Seventh Coronavirus Stay of Execution

The Texas Court of Criminal Appeals has stayed the May 6, 2020 exe­cu­tion of Edward Busby (pic­tured) for six­ty days. Busby’s was the nation’s sev­enth exe­cu­tion post­poned in the United States because of the coro­n­avirus and the sixth in Texas. 

The stay, issued on April 27, marked the 26^th exe­cu­tion date in the first half of 2020 to be halt­ed. By con­trast, five exe­cu­tions have been car­ried out with three oth­ers — two in Texas and one in Missouri — still pend­ing before the end of June. 

The court’s stay order did not spec­i­fy the grounds for its deci­sion, say­ing only that “[w]e have deter­mined that the exe­cu­tion should be stayed at the present time.” However, Busby’s stay motion had sought to post­pone his exe­cu­tion because of the dan­gers of mov­ing for­ward with his case dur­ing the COVID-19 pan­dem­ic. ​“The rapid­ly spread­ing coro­n­avirus is pro­duc­ing an unprece­dent­ed cri­sis in this coun­try, and in Texas,” wrote defense coun­sel Jeffrey R. Newberry. ​“It is affect­ing every aspect of dai­ly func­tion­ing — includ­ing in the crim­i­nal jus­tice sys­tem. Each day, each hour, increas­es the num­ber of peo­ple and systems effected.”

The defense motion cit­ed the state of dis­as­ter declared by Texas Gov. Greg Abbott and an emer­gency order entered by the Texas courts as sup­port for the stay request. ​“Under the Court’s order,” Busby’s motion states, ​“all Texas courts may — and must to avoid risk to court staff, par­ties, attor­neys, jurors, and the pub­lic — mod­i­fy or sus­pend any and all dead­lines and pro­ce­dures for a stat­ed peri­od end­ing no lat­er than 30 days after the Governor’s state of dis­as­ter has been lifted.”

As coun­sel for Tennessee death-row pris­on­er Oscar Smith also explained in the motion that led to the stay of his June 4, 2020 exe­cu­tion, pro­ceed­ing with the exe­cu­tion would cre­ate a num­ber of pub­lic health risks. Busby’s motion said the lit­i­ga­tion and exe­cu­tion process would increase the risk of infec­tion for coun­sel, court per­son­nel, and those involved in car­ry­ing out or wit­ness­ing the execution. 

In addi­tion to Busby, the Texas Court of Criminal Appeals has grant­ed COVID-19-relat­ed stays of exe­cu­tion to John Hummel, Tracy Beatty, and Fabian Hernandez. Each of these stays auto­mat­i­cal­ly expires after six­ty days. Prosecutors must then peti­tion coun­ty courts to set new exe­cu­tion dates. Texas tri­al courts have with­drawn two oth­er exe­cu­tion dates and issued new orders resched­ul­ing the exe­cu­tions of Billy Joe Wardlow and Carlos Trevino for July 8 and September 30, 2020, respectively. 

With Texas still in its state of dis­as­ter, Randall Mays and Ruben Gutierrez face pend­ing exe­cu­tions sched­uled for May 13 and June 16. Walter Barton faces a May 19 exe­cu­tion date in Missouri.