Tuscaloosa News
July 31, 2008
By DANA BEYERLE
MONTGOMERY | The Alabama Supreme Court late Wednesday afternoon stayed the scheduled execution of convicted murderer Thomas Douglas Arthur tonight for a third time after another prisoner serving a life sentence for an unrelated murder confessed to the crime.
Arthur, 66, was scheduled to die by lethal injection at 6 p.m. tonight at Holman Prison near Atmore. Twice previously, he came close to being executed for the 1982 shooting death of Troy Wicker Jr. of Muscle Shoals.
'I'm just elated, I'm in tears, I'm trying to gather myself,' said Arthur's daughter, Sherrie Stone, after visiting her father to say their goodbyes. 'I just got through seeing my dad, and I had this vision it would be stayed.'
The nine-member court gave no reason for staying the execution. The ruling said, 'It is therefore ordered that the order of this court of June 30 … setting an execution date of (Thursday) for Thomas Douglas Arthur is stayed pending further orders of this court.'
Voting for the stay were Chief Justice Sue Bell Cobb, and justices Champ Lyons, Tom Woodall, Patricia M. Smith, and Glenn Murdock. Dissenting were Justices Harold See, Lyn Stuart, Michael Bolin and Tom Parker.
Arthur's lawyer, Suhana Han, had filed an alleged confession by inmate Bobby Ray Gilbert, in which Gilbert said he, not Arthur, had been hired by Wicker's wife, Judy Wicker, to kill Wicker. Han also filed a motion for a hearing on Arthur's claim of innocence and a request for evidence testing in Jefferson County Circuit Court, where Arthur was convicted a third time about 20 years ago.
His two previous murder convictions were overturned on appeal.
'We believe this is the right result, and we look forward to the opportunity to finally litigate Mr. Arthur's claim that he is innocent, and we also hope to finally have opportunity to test DNA evidence,' Han said in an interview.
Attorney General Troy King said he feels bad for the Wicker family.
The family has three times 'come to the brink of an execution' expecting justice 'only to have someone step in and intervene and take away what the state of Alabama promised them,' he said.
'There's cause to be concerned that Tommy Arthur could escape execution altogether if this leads to other rounds of lengthy appeals,' King said. 'If that happens, that will be a real travesty of justice.'
The state countered Arthur's claim with an affidavit by Judy Wicker in which she said she didn't know Gilbert, and that she had hired Arthur and was present when her husband was killed.
Troy Wicker was shot in the eye while sleeping on Feb. 1, 1982.
Judy Wicker initially said a black male assaulted and raped her and killed her husband but changed her story and Arthur was convicted.
Judy Wicker served 10 years for the murder before she was released early from a life sentence.
In motions to the Supreme Court and Circuit Court, Arthur's attorneys argued that Gilbert's confession needs to be heard and crime scene evidence needs to be tested to bolster his claim of innocence.
Han also pointed to the state's admission in a court filing that a rape kit that Arthur's attorneys have sought for DNA testing can't be found.
She said the missing rape kit raises questions that need to be resolved before Arthur's execution.
Wednesday's stay comes after a dramatic rush to court with motions to halt the execution and replies by the state to proceed because the confession came from an inmate who couldn't be trusted.
Han said Gilbert's sworn statement is a 'material fact' that could have influenced a jury at Arthur's third trial, had it been known at the time.
Gilbert said he killed Wicker when he was about 17. He is now 43.
Clay Crenshaw, chief of the attorney general's capital litigation section, said he learned Friday that Gilbert had a statement to give to Arthur's attorneys.
Crenshaw said he interviewed Gilbert on Monday, during which Gilbert said he knew Judy Wicker and 'implied' that he was involved in Troy Wicker's murder, Crenshaw said. Gilbert said a dead cousin also was involved.
Crenshaw and another attorney took Judy Wicker's statement.
Crenshaw said Gilbert was at Holman Prison, where Arthur was imprisoned, until January and had frequent contact with death row inmates.
King's office attempted to discredit Gilbert as untrustworthy because he is a 'despicable human being who has no credibility,' his motion said.
'Arthur's newly discovered evidence claim is without merit because Gilbert's alleged confession fails to meet each element of [state appellate rules],' assistant attorney General Jasper Roberts Jr. said.
Gilbert, who is from DeKalb County, is serving a sentence of life without the possibility of parole for two murders, an escape attempt and attempting to kill another inmate, King said.
In a July 20 letter to Gov. Bob Riley, Arthur denied guilt and said Judy Wicker paid another man $5,000 to kill her husband.
Arthur during the sentencing phase of his last trial asked to be sentenced to death because he believed it would help his appeal.