September 9, 2010
Judge promises quick decision on delaying execution
A judge considering a request to delay the Sept. 16 execution of convicted murderer Gregory Wilson said Wednesday he’s concerned that state regulations may fail to prevent an insane or mentally retarded person from being put to death.
“The U.S. Supreme Court has held you cannot execute someone who’s insane,” Franklin Circuit Judge Phillip Shepherd said during a two-hour hearing on the regulations. “The U.S. Supreme Court has said you cannot execute someone who’s mentally retarded. ... These regulations, it seems to me, could be followed to the letter and yet someone who is mentally retarded could still be executed.”
Shepherd said he will decide before the end of the week on a motion to delay Wilson’s execution until he rules on a challenge — originally brought by other Death Row inmates — to the legality of the regulations that govern the lethal injection process.
Wilson, 53, was convicted in September 1988 of the abduction, rape, robbery and murder of Debbie Pooley, 36, an assistant manager of a Newport restaurant.
The Death Row inmates are challenging the way Kentucky put its current method of execution into place, saying the state didn’t comply with the law on adopting administrative regulations and that the protocol is incomplete.
Kentucky approved the three-drug injection method in May, seven months after the state’s high court ruled that it previously had been adopted improperly and halted all executions.
Wilson was allowed to join the suit, seeking to stop the state from putting him to death.
He also has appealed to the Kentucky Supreme Court to grant DNA testing in his case, as well as testing to see if he’s mentally retarded and ineligible for execution.
A Kenton Circuit judge last week turned away Wilson’s request for mental and DNA testing, saying the issues were either raised too late or wouldn’t make a difference in the outcome of his case.
Kentucky’s execution protocol covers a variety of issues, including what to do about a pregnant inmate, but doesn’t address if or how the state Department of Corrections should determine whether an inmate is mentally retarded or insane.
During Wednesday’s hearing, Shepherd repeatedly said he finds it troubling that the regulations don’t include some step to prevent the execution of such individuals.
But Assistant Attorney General Heather Fryman argued that the regulations are legally sound.
“And it would be impossible for the Department of Corrections to be expected to anticipate every legal argument that any condemned inmate could possibly make and address that in a comprehensive regulation,” she said.
Fryman said the issue raised by Shepherd would serve to create “a whole new post-conviction proceeding” in death penalty cases.
She stressed that Wilson was convicted more than 22 years ago and only recently raised the issue of mental competency.
“We’ve had 22 years of judicial review. ... I think 22 years of litigation is sufficient protection,” Fryman said.
But Shepherd said he has studied the Wilson case carefully, “and I have to say I’m not sure the system has worked in Mr. Wilson’s case.”
One of Wilson’s attorneys, Leo Smith, said a test given to Wilson when he was 14 measured his IQ at 62, well below the legal floor of 70 upheld by Kentucky’s high court and the U.S. Supreme Court.
Another of his lawyers, Margaret Keane, argued that the question regarding the regulations must be decided before the state “takes the ultimate sanction” against her client.
“To delay a man’s death, I submit, is not an inequity to the people of the commonwealth,” Keane said.
http://www.courier-journal.com/artic...9080090/-1/rss
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