July 31, 2008— -- MOBILE, Ala. (AP) -- The Alabama Supreme Court postponed the execution of Thomas Arthur late Wednesday, just over 24 hours before he was scheduled to die. It was the third time Arthur has received a stay on the eve of a scheduled execution.
Voting 5-4, the justices wrote a two-paragraph order postponing the execution "pending further orders of this Court." The move comes two days after another inmate submitted an affidavit saying he committed the crime that sent Arthur to death row.
"My reaction is we finally look forward to the opportunity to examine fully Mr. Arthur's claim of innocence by assessing witness testimony and DNA evidence," said Suhana S. Han, who is representing Arthur. "That is the right result."
State Attorney General Troy King said he was disappointed the court issued the stay because the victim's family had already waited too long for justice. "The crimes against Troy Wicker's family continue to compound," he said.
King called the stay a serious setback for the prosecution. "There is a good chance he is going to escape his sentence before all is said and done," the attorney general said.
Arthur, 66, had been scheduled for execution at 6 p.m. (CDT) Thursday at Holman Prison. He was convicted of the Feb. 1, 1982, killing of Troy Wicker Jr. of Muscle Shoals.
Han said she spoke to Arthur after receiving word of the stay and "needless to say, he was absolutely ecstatic."
"Having to face execution is something that most of us can never really imagine," she said.
Voting for a stay were Chief Justice Sue Bell Cobb and justices Champ Lyons, Tom Woodall, Patti Smith and Glenn Murdock. Against were justices Harold See, Lyn Stuart, Mike Bolin and Tom Parker.
Arthur's attorneys, who claim DNA testing could exonerate their client, sought a stay of execution from Gov. Bob Riley and the courts by using an affidavit from convicted murderer Bobby Ray Gilbert, who is serving a life sentence at St. Clair Correctional Facility
In a sworn statement Monday to Arthur's attorneys, Gilbert claimed he killed Wicker when he was 17. But Wicker's widow, Judy Wicker, who served a prison sentence for hiring the killer, said in an affidavit to the attorney general's investigators that she never met Gilbert. She once again accused Arthur of the killing.
"None of Gilbert's allegations are true. I do not know anyone named Bobby Gilbert," she said in a sworn statement Monday. "I hired and paid money to Thomas Arthur, not Bobby Gilbert, to kill Troy Wicker."
Attorney General Troy King also dismissed Gilbert's statement and sought to keep the execution on schedule.
Arthur's attorneys on Tuesday renewed a bid for a stay from the Alabama Supreme Court and turned to the Jefferson County Circuit Court, offering the Gilbert affidavit as new evidence in a bid for a hearing.
"The presentation of Gilbert's affidavit is yet another example of Arthur presenting information that is fabricated and incredible," Assistant Attorney General Jasper Roberts told the court in a filing Wednesday.
Challenging Gilbert's credibility, Roberts noted that of the 23 years Gilbert has been in prison, he has spent about 20 in administrative segregation for violating prison rules and regulations. He said Gilbert has convictions for two murders, an escape, and assault on another inmate with the intent to commit murder.
Arthur's daughter, Sherri Stone, said she was in shock after spending most of what she thought was one of her last days with her father at the prison.
"I hope to finally end this; hope to finally prove the innocence that he's claimed for 26 years," she said.
Han told the courts that a hearing is needed to judge the credibility of Gilbert and Wicker.
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.
Judy Wicker claimed to have been raped by a burglar who killed her sleeping husband. She later recanted and named Arthur as the killer.
In trial testimony, Judy Wicker said she paid Arthur $10,000 to kill her husband in an insurance scheme. She served 10 years before her early release from a life sentence.
The Alabama Supreme Court and the 11th Circuit Court of Appeals earlier denied Arthur's bid to delay the execution so that DNA testing of evidence could be done.
Prosecutors point out that every court that has reviewed Arthur's case concluded that favorable DNA test results will not establish his innocence. Arthur was tried three times for the Wicker killing, and the first two convictions were overturned on technicalities.
The New York-based Innocence Project, an international organization that specializes in DNA exonerations, and Amnesty International have supported Arthur's DNA request.
Arthur's execution would have been the first in Alabama since the U.S. Supreme Court, in April, upheld the use of lethal injection.