Court delays Mississippi execution
The Supreme Court, over three Justices’ dissents, on Tuesday evening temporarily blocked the execution in Mississippi of a man whose lawyers contend he was not mentally competent to make a decision to drop all appeals and allow his execution to go forward. The Court stayed the execution, which was about to occur, until it acts later on an appeal in the case (Wilcher v. Epps). One of the unusual aspects of the postponement was that Justice Clarence Thomas did not oppose the stay, as he usually does in capital cases. Dissenting from the order were Chief Justice John G. Roberts, Jr., and Justices Antonin Scalia and Samuel A. Alito, Jr. The petition for review in the case is docketed as 06-5147; the stay application was 06-A-36.
The case involves Bobby G. Wilcher, 44, who was convicted of the 1982 stabbing murders of two women whom he had met at a bar in Forest, Miss. He had persuaded them to give him a ride home. They were slain along a deserted road in Bienville National Forest. Wilcher was sentenced to death in 1984.
He was scheduled to be executed at 6 p.m. Tuesday. He was waiting in a holding cell next to the execution chamber when the Supreme Court issued its stay order. He was then returned to a cell on Death Row.
The Fifth Circuit Court had refused on Monday to allow an appeal from a District judge’s order dismissing Wilcher’s habeas petition, in which he sought to abandon his earlier decision to end any appeals and submit to execution. The District Court had found him to be mentally competent to withdraw his challenge and accept execution.
The Circuit Court remarked in its five-page ruling (docket 06-70031) that “this sudden about-face strikes us as nothing more than an Eleventh-hour death row plea for mercy finally elicited from Wilcher by counsel; the accompanying affidavit states only a conclusional flip-flop by Wilcher, who had cogently and voluntarily testified at length in the district court hearing only weeks earlier that enough was enough, and that he wished to abandon all appeals and submit to execution forthwith….That able and persuasive Counsel was finally successful in convincing Wilcher to do an about-face scant days before his requested execution is not surprising — but is without authority under applicable law and is to no avail.” The Per Curiam opinion can be found here.
In the appeal to the Supreme Court, Wilcher’s lawyer raises three questions. The first contends that the Circuit Court violated the Supreme Court’s 1996 decision in Lonchar v. Thomas, barring federal courts from dismissing a first habeas petition for reasons other than those spelled out in habeas law. The petition argues that Wilcher was denied relief because of the lateness of the filing of his attempt to resume his challenge. The second question claims a right to appeal over a due process violation in the District Court proceeding, and the final question claims a right to appeal over his competency to abandon his challenge.
The Court is not expected to act on the appeal until early in the next Term. If it denies review, Mississippi will be allowed to reschedule the execution. If review is granted, the stay will be in effect until a final ruling is issued.
Perhaps this is a lit impolitic, but there were press reports that SCOTUS asked Mississippi for more time to decide on the stay. Were I the Mississippi AG, the answer would have been “no”. And I would have told the warden to get on with it. The fall-out would be interesting to say the least.
The Supreme Court has got to realize just how abusive its actions are. The granting of a last-minute stay should be exceedingly rare, and state courts should be trusted to get the last-minute stuff done (competence etc.)
What’s even worse is that the Court appears now to be looking at the reasoning behind these last-minute denials. That is completely unfair. How can a court be expected to get the reasoning completely perfect in a day? Come on. And who should bear the risk of not perfect reasoning, the state, or the prisoner who files these last-minute motions. This happened in Hill. Had the 11th Circuit said that the equities did not lie in Hill’s favor, the Court would have allowed the execution to go forward. So, because they didn’t accurately predict that the Supreme Court would blow off AEDPA and rule that 1983 claims are cognizable, justice was denied. That’s just not right. I thought it was “judgments”, not “opinions” that were the important thing. In my view, the Supreme Court’s actions here and in Hill’s case are every bit as bad as the actions of the lone Senior Circuit Judge who unilaterally stayed Sedley Alley’s execution (who should, in my view, be impeached and removed from office).
Comment by federalist — July 13, 2006 @ 12:04 pm