Ruling could slow the pace of executions

DALLAS — The U.S. Supreme Court's rare decision to stop a Texas execution late Thursday after its announcement that it would review lethal injection could significantly reduce use of the death penalty across the country.

But capital-punishment experts are hesitant to predict a moratorium.

The reprieve in the case of Carlton Turner Jr., 28, who confessed to killing his adoptive parents in Irving in 1998, was the high court's first since agreeing to take a Kentucky case questioning whether the three-drug cocktail used in most lethal injections violates the constitutional ban on cruel and unusual punishment.

But the court's order late Thursday gave no indication of the court's thinking and came two days after it denied another Texas appeal on similar grounds, leading to the execution of death-row inmate Michael Richard, who raped and killed a nurse in 1986.

"I would absolutely not use the term 'moratorium' to characterize where we are right now," said David Dow, an attorney in both cases.

The difference between Tuesday's execution and Thursday's stay of execution was that on Tuesday, Richard's attorneys weren't able to file the paperwork in time with the Texas Court of Criminal Appeals because of a computer crash, Dow said.

He said the attorneys notified the court of the computer problems. But the court would not stay open past 5 p.m. to accommodate them, and attorneys instead filed the appeal in a district court.

They then asked the Supreme Court to hear an appeal on the lethal-injection issue, but the high court had no jurisdiction to hear it without the lower Texas Court of Criminal Appeals ruling.

"I think that Michael Richard got executed because the Court of Criminal Appeals couldn't be bothered to stay open 20 minutes late so we could get all our briefs in," Dow said.

Abel Acosta, chief deputy clerk for the court, declined to comment on whether the court should have stayed open in a life-or-death situation.

Like most states, Texas uses three drugs administered sequentially: sodium thiopental, which makes the person unconscious; pancuronium bromide, which shuts down breathing; and potassium chloride, which stops the heart.

Defense lawyers for death-row inmates contend sodium thiopental could wear off or be administered ineffectively, causing inmates to suffer several minutes of pain before dying.

With more time Thursday, Dow and the other lawyers went back to the Court of Criminal Appeals, and the court voted 5-4 to reject Turner's appeal. The state court ruled it had determined lethal injection did not constitute cruel and unusual punishment in a 2006 case.

The attorneys then appealed to the Supreme Court.

The high court's order stopping the execution did not indicate how the nine justices voted. But at least five votes are needed for a stay, Dow said.

Turner's stay will remain in effect until the high court can consider further arguments and decide whether to review the case along with the one from Kentucky.

Richard Dieter, executive director of the Death Penalty Information Center, said court watchers have been whipsawed by the Supreme Court's recent capital-punishment rulings and won't be able to assess their impact until some explanation is forthcoming.

But the stay of execution in the Turner case is a significant, though temporary, development, one that hasn't been matched since capital punishment was suspended in the 1970s, Dieter said.

Previous capital-punishment rulings affected only certain groups of death-row inmates, such as juveniles or the mentally retarded. But these actions may affect most of the country's more than 3,300 death-row inmates.

"The fact that the U.S. Supreme Court granted this stay may be a strong signal that this is a much broader issue than Kentucky," Dieter said. "It's of national importance."

Douglas Berman, a sentencing expert at Ohio State University's law school, called it a "molasses moment in the overall operation of the death penalty" because it will slow, but not stop, the death machinery.

After the high court accepted the Kentucky case, Alabama Gov. Bob Riley granted a stay of execution to an inmate to give officials time to change the lethal-injection protocol. Several other states have placed a moratorium on executions out of concern about the administration of the death penalty.

Another test of the Supreme Court's intent probably will come Wednesday, when defense attorneys are expected to appeal the execution of Heliberto Chi.

Chi was convicted in the 2001 murder of Armand Paliotta, 56, during the robbery of an Arlington, Texas, men's-clothing store.

Dow said he hopes the Court of Criminal Appeals will stay Chi's execution.

"I hope that they look at what happened in the Turner case and come to the conclusion that we're going to go up to the Supreme Court and the Supreme Court is going to grant it," he said.