Two Kentucky death row inmates asked a federal appeals court to grant them funding for neuropsychological testing they hope will hold off their executions.
Condemned inmates Robert Foley and David Eugene Matthews have each filed cases with the U.S. 6th Circuit Court of Appeals in Cincinnati. Both men want the higher court to overturn decisions by federal judges in Kentucky denying the men funds for the mental health tests.
In both cases, the inmates are seeking the tests to use as part of a clemency bid should an execution date be set.
Matthews, 65, will get to make the first request. The appeals court has set a Dec. 2 deadline for his attorneys to file a brief. Prosecutors will have until Feb. 3 to respond. Matthews' case will be decided sometime in the spring or summer of 2014.
The court has not yet set filing deadlines for Foley, 57.
Matthews, the second-longest serving inmate on Kentucky's death row, was condemned for killing his estranged wife, Mary "Marlene" Matthews, and mother-in-law, Magdalene Cruse, in Louisville on June 29, 1981.
Foley is awaiting execution for the 1991 slayings of Rodney and Lynn Vaughn after a dispute in Laurel County. Foley, a former FBI informant, is also on death row for four other slayings.
Both inmates were turned down earlier this year in their quests for funds for mental test to bolster clemency bids.
Foley sought funds for a neuropsychologist, saying he has an extensive history of head trauma, but he lacks a formal diagnosis of a neuropsychological disorder or condition. Specifically, Foley's attorneys cite a 1991 car wreck in which Foley's car flipped over and threw him from the front seat to the back seat, and an incident later that year in which Foley's legs went numb while he tried to push a car.
Foley contends such an expert could determine if that trauma has affected his behavior — a finding that could affect whether the governor grants him clemency, Reeves wrote.
U.S. District Judge Danny C. Reeves concluded that Foley's legal and mental history showed no signs of any adverse impact from head injuries or mental shortcomings.
Matthews made a similar argument to U.S. District Judge John G. Heyburn II, who rejected the request, writing that Matthews had an opportunity over the last 30 years to litigate his claims.
Both appeals are being pursued as Kentucky seeks to restart executions for the first time since 2008. Kentucky switched from using three drugs to carry out a lethal injection to a method that uses 3 grams of sodium thiopental or 5 grams of pentobarbital — similar to the method used by Ohio. If those drugs are not available within seven days of an execution date, the state may use a two-drug method involving continued injections of 60 milligrams of a combination of Midazolam and hydromorphone.
Franklin Circuit Judge Phillip Shepherd has been reviewing the method since a hearing in March, but has yet to rule.
Kentucky has executed three inmates since the reinstatement of the death penalty in 1976, with the last execution being carried out in 2008. At least two and as many as seven inmates are at or near the end of their appeals.
http://www.sfgate.com/news/article/2...ds-4939906.php
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