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The Birmingham News
July 1, 2008

STAN DIEL
News staff writer

Barring an unlikely stay, Alabama will resume executions on July 31, 10 months after the U.S. Supreme Court effectively halted them nationwide while it considered a Kentucky challenge to lethal injection.

The Alabama Supreme Court on Monday scheduled for July 31 the execution of Thomas D. Arthur, who was convicted of the 1982 murder-for-hire killing of Troy Wicker Jr. of Muscle Shoals. Arthur has twice come within a day of being executed, but was spared.

On Sept. 27, Gov. Bob Riley issued a stay hours before Arthur's scheduled execution so the state could add a step to its lethal injection procedure. On Dec. 5, the U.S. Supreme Court blocked his execution, this time a day before it was to be carried out, pending a decision in the Kentucky case. The U.S. Supreme Court ruled in that case in April, finding lethal injection to be constitutional. Six other states already have resumed executions.

Arthur, now 66, was convicted of killing Wicker, 35, who was shot through the right eye as he slept. Wicker's wife, Judy, initially told police that a burglar raped her and killed her husband. But she later recanted and said she paid Arthur, a work-release inmate with whom she was having an affair, to kill her spouse so she could collect $90,000 in life insurance proceeds.

Advocates including Amnesty International and The Innocence Project have championed Arthur's case because witnesses changed testimony between his second and third trials, saying they had been bribed or pressured to testify for the prosecution. Advocates also have said they believe modern DNA testing could prove he is innocent. The U.S. Supreme Court turned back Arthur's request for DNA testing.

Arthur's first two convictions were overturned on appeal. The first was overturned because prosecutors wrongly introduced evidence about a prior murder conviction, and the second because he was questioned after requesting a lawyer. He was convicted at a third trial.

Efforts to reach an attorney representing Arthur on Monday were unsuccessful. But recent court filings indicate he has a single appeal pending.

In an appeal before the 11th Circuit Court of Appeals in Atlanta, Arthur argues that Alabama's newly modified execution procedure amounts to cruel and unusual punishment, in violation of the Eighth Amendment to the Constitution. Under the procedure adopted in October but not yet used, after the condemned is given a drug meant to render him unconscious, a corrections officer will speak the inmate's name, pinch his arm and brush a finger over his eyelashes.

If the guard determines the prisoner is not conscious, the execution will proceed with the administration of drugs meant to cause paralysis and cardiac arrest.

According to lawsuits filed by Death Row inmates, before the addition of the steps meant to assess consciousness, Alabama's execution procedure was identical to the Kentucky procedure that was before the Supreme Court.