Before Last Execution, A Frenzied Legal Fight

Texas high court would not stay open past 5 p.m. for lawyers to file appeal

ByABC News
February 18, 2009, 6:14 PM

Nov. 15, 2007— -- Michael Wayne Richard was dressed for his execution in Texas' death house on Sept. 25 when the U.S. Supreme Court announced at 7:30 p.m. that it wouldn't postpone the convicted killer's lethal injection.

"I'd like for my family to take care of each other," Richard, wearing a white smock, matching pants and slippers, called out. "Let's ride. I guess this is it."

By 8:23 p.m., Richard, 48, was dead. He was the 42nd person executed in the USA this year and the 26th in Texas, the leading death penalty state.

Richard's case stands out. His execution for the rape and murder of a nurse in 1986 has become the latest flash point in the national debate over whether the death penalty is applied fairly. It followed a frenzied, behind-the-scenes legal fight that led to intense criticism of Texas' courts and confusion about the actions of the nation's highest court.

The U.S. Supreme Court, without comment, refused to intervene in Richard's execution — even though, hours earlier, the court had said it would use a Kentucky case to review questions about lethal injection.

The court's decision to take that case has effectively put executions on hold across the USA. Since allowing Richard's execution, justices have stopped the three next scheduled, including one in Texas. On Wednesday, a federal court in Florida joined 11 other state and federal courts in delaying a lethal injection. The postponements mean that Richard's execution is likely to be the last until the high court rules in the Kentucky case next year.

The legal chaos that played out in the hours before Richard's execution emerges in interviews with defense lawyers and state officials, along with court and prison documents.

As defense attorneys raced to finish last-minute appeals, they were derailed by maddening breakdowns of their computer system. Then, with the execution scheduled for 6 p.m., the state's highest criminal court decided not to extend its office hours past 5 p.m. — blocking Richard's attorneys from asking the state court to delay the execution until the U.S. Supreme Court ruled in the Kentucky case.

Just before Richard's scheduled execution time, defense attorney Greg Wiercioch says, the Texas attorney general's office gave him an ultimatum: The state would give Richard's lawyers six minutes to file a final appeal to the U.S. Supreme Court, or it would move forward with the lethal injection. The lawyers, still struggling with computer problems, barely met the attorney general's deadline to appeal to the Supreme Court.

Jerry Strickland, spokesman for Texas Attorney General Greg Abbott, acknowledges the office "urged (Richard's attorneys) to file any remaining appeals as quickly as possible," but says that did not amount to a threat. Strickland says the state did delay the execution until it received word that the U.S. Supreme Court was not stepping in.

That concession did little to appease critics. For the first time in its 49-year history, the National Association of Criminal Defense Lawyers has filed a complaint against a sitting judge, calling the execution-night closure of the Texas Court of Criminal Appeals a "shocking breakdown" of the justice system.