WILMINGTON, Del. (AP) — A man convicted of killing a woman with an axe was scheduled to die by lethal injection in Delaware later this week, but lawyers for the man were expected in court Wednesday trying to halt the execution.
Robert Jackson III is set to die early Friday in what would be Delaware's first execution since 2005, but Jackson's lawyers had a number of legal challenges still up in the air. Two hearings scheduled for Wednesday could result in a stay of execution for Jackson, who was convicted of killing woman during a botched burglary in 1992.
In the first hearing planned for Wednesday, a federal judge in Wilmington was to hear arguments over whether Jackson should he be allowed to re-open a lawsuit challenging the state's execution practices, which were recently changed to allow for the use of a new drug. At an afternoon hearing some 50 miles away in Dover, lawyers were to argue before the Delaware Supreme Court that Jackson's execution should be stayed while the U.S. Supreme Court decides whether to take his case.
Jackson was convicted in 1993 of killing Elizabeth Girardi at her home in the affluent area of Hockessin. Police found Girardi lying in the driveway of her home, her face bludgeoned with an axe. Jackson was arrested after police caught his friends pawning a bracelet that belonged to Girardi. An accomplice pleaded guilty to burglary and testified against Jackson.
In the Wednesday morning hearing, Jackson's lawyers were expected to be before U.S. District Judge Sue Robinson to argue Jackson should be allowed to challenge Delaware's execution procedures, which were changed in May because of a nationwide shortage of the first of three drugs the state used to carry out executions. The only U.S. manufacturer of the drug, sodium thiopental, discontinued production in 2009, and its last batch of the drug expired earlier this year.
New guidelines allow Delaware corrections officials to use another sedative called pentobarbital as the first drug administered during an execution. If Jackson's execution goes forward, he would be the first person to be executed in the state with the drug. Eight other states have already carried out executions using pentobarbital and a number of other states have also announced they will switch, according to the Washington-based Death Penalty Information Center.
Jackson's lawyers argue in papers filed with the court, however, that using pentobarbital creates an unconstitutional risk of pain and suffering during an execution. They say pentobarbital has not yet been thoroughly vetted as an alternative to sodium thiopental and cite two recent executions, one in Alabama and one in Georgia, where they say prisoners showed signs of pain including jerking and opening their eyes after pentobarbital was administered. As a result, Jackson's lawyers are asking that he be allowed to re-open an earlier, unsuccessful lawsuit over Delaware's execution procedures to challenge the use of pentobarbital.
"Pentobarbital is not marketed, tested, FDA-approved, or used clinically as an anesthetic," Jackson's lawyers wrote in papers filed with the court, saying Delaware could have chosen an anesthetic with a track record.
Lawyers for the state, however, argue that the use of pentobarbital as an alternative to sodium thiopental is not a significant change or one that is likely to cause pain and suffering. They cite executions carried out using the drug in other states and note that Jackson's lawyers had previously said it would be an acceptable chemical to use.
"Put simply, at some point the State has a right and a duty to execute Jackson's lawfully obtained sentence," lawyers for the state wrote in court papers opposing a reopening of the case and any halt to his execution. "Now, nearly twenty years after the crime for which that sentence was imposed, that time has come."
Source: beaumontenterprise.com, July 27, 2011
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