Execution of Texas inmate set to proceed after Supreme Court grants request to overturn stay

HOUSTON (AP) — The execution of a Texas inmate condemned for fatally shooting an 80-year-old woman more than two decades ago was set to proceed Tuesday night after the U.S. Supreme Court overturned a lower court’s stay and then rejected another request to intervene.

Jedidiah Murphy, 48, was sentenced to death for the October 2000 killing of Bertie Lee Cunningham during a carjacking.

Tuesdays scheduled lethal injection had been put on hold after the 5th U.S. Circuit Court of Appeals on Monday upheld a federal judge’s order from last week delaying the execution over questions about the evidence used to sentence him to death.

But the U.S. Supreme Court early Tuesday evening granted an appeal from the state attorney general’s office asking to overturn the stay and allow the execution to proceed at the state penitentiary in Huntsville.

Later Tuesday night without comment, the high court rejected another defense request to stay Murphy's execution. The inmate's lawyers had asked late Tuesday afternoon that the execution be delayed over claims the drugs he is to be injected with were exposed to extreme heat and smoke during a recent fire, making them unsafe and leaving him at risk of pain and suffering.

Texas prison officials on Tuesday carried out normal procedures with Murphy that are followed on an execution day, including final visits, said Amanda Hernandez, a spokeswoman for the Texas Department of Criminal Justice.

Murphy admits he killed Cunningham, who was from the Dallas suburb of Garland. But he denies he committed two robberies and a kidnapping that prosecutors used to persuade jurors during the penalty phase of his trial that he would pose a future danger — a legal finding needed to secure a death sentence in Texas.

A federal judge in Austin issued a stay last week after Murphy's lawyers filed a lawsuit seeking DNA testing of evidence presented at his 2001 trial. They argue the crimes were the strongest evidence prosecutors had to show Murphy would pose an ongoing threat, but that the evidence linking him to the crimes is problematic, including a questionable identification of Murphy by one of the victims.

Prosecutors have argued against the DNA testing, saying state law only allows for post-conviction testing of evidence related to guilt or innocence and not to a defendant’s sentence. They also called Murphy’s request for a stay “manipulative” and say it should have been filed years ago.

Prosecutors say the state presented “significant other evidence” to show that Murphy posed a future danger.

In upholding the execution stay, the 5th U.S. Circuit Court of Appeals said another case before it that was brought by a different Texas death row inmate raises similar issues and that it was best to wait for a ruling in that case.

Murphy has long expressed remorse for killing Cunningham.

“I wake up to my crime daily and I’ve never gone a day without sincere remorse for the hurt I’ve caused,” Murphy wrote in a message this year he sent to Michael Zoosman, who had corresponded with Murphy and is co-founder of L’chaim! Jews Against the Death Penalty. Murphy is Jewish.

Murphy’s lawyers have said he also has a long history of mental illness, was abused as a child and was in and out of foster care.

“We should look to what rabbinic Judaism says about teshuvah, the which means repentance and about how if somebody is doing all that they can do to repent for their crimes, that should be given consideration. ... But the reality is we don’t have a system that’s based on restorative justice. We have a system that’s based on retributive vengeance,” Zoosman said.

Last week, the Texas Board of Pardons and Paroles unanimously declined to commute Murphy’s death sentence to a lesser penalty or grant a six-month reprieve.

Murphy’s lawyers also had sought in lower courts to stop his execution over allegations the execution drugs the state would use on him were possibly damaged during an Aug. 25 fire at the Huntsville prison unit where they were stored. A federal judge and a state appeals court had denied that request.

Murphy's lawyers on Tuesday told the Supreme Court a stay was merited on this issue to allow them to further investigate what impact the fire had on the execution drugs.

Tuesday marked World Day Against the Death Penalty, an annual day of advocacy by death penalty opponents.

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