ST. LOUIS — Missouri's top law enforcer asked a federal appeals court Monday to throw out a judge's ruling that hours earlier put on hold the execution of a man condemned in the 1989 abduction, rape and killing of a teenager.
Attorney General Chris Koster's appeal to the St. Louis-based 8th U.S. Circuit Court of Appeals followed a Kansas City federal judge's decision that Roderick Nunley deserved more time to argue his sentence should have been determined by a jury, rather than a judge alone.
Nunley, 45, has been scheduled to be put to death at 12:01 a.m. Wednesday. It was not immediately clear how quickly the 8th Circuit would rule on Koster's claim, among other things, that Nunley sat on his due-process issue for years before finally filing it Sept. 30.
"There can be no reasonable argument that Nunley could not have raised the claim years ago, and fully litigated it in state and federal court without a stay," Missouri's petition to the 8th Circuit read. "But he chose not to do so."
The state's appeal called Nunley's delay in pressing the claim "unexplained and unexplainable" while also casting it as "abusive."
Nunley and accomplice Michael Taylor had hoped to avoid a death sentence when they decided against a jury trial, pleaded guilty and were sentenced to death in 1991 by a Jackson County judge.
In issuing the stay Monday, Chief U.S. District Judge Fernando Gaitan Jr. in Kansas City found Nunley was entitled to a stay of execution while the Missouri Supreme Court determined whether the right to a jury should be retroactively applied to Nunley's case, as permitted in some cases by subsequent U.S. and state Supreme Court rulings.
It was not immediately clear why Nunley's attorneys challenged not having a jury decide the case and sentence. Numerous messages left by telephone and e-mail with Nunley's attorney, Jennifer Herndon, were not returned.
Another appeal that Nunley also has pending before a federal judge argues that Missouri obtains the chemicals for its three-drug method of execution without a prescription and administers them unlawfully.
Gov. Jay Nixon also is weighing a clemency request on Nunley's behalf, spokesman Scott Holste said.
Authorities said Nunley and Taylor, while on drugs, stole a car before spotting 15-year-old Ann Harrison at a school bus stop near her home and abducting her. Taylor raped the girl in the basement of Nunley's mother's house before the men forced her into the car's trunk, bound her and stabbed her 10 times out of concern she would identify them.
The men abandoned the car in woods, with Harrison's body in the trunk. Nunley later gave a videotaped confession, saying Taylor initially confronted Harrison with plans to steal her purse.
Nunley and Taylor were sentenced to death by Jackson County Circuit Judge Alvin Randall, who never had sentenced a convict to death and was reputedly a death-penalty opponent. Both men appealed, accusing prosecutors of racism and alleging Randall had been drinking before the sentencing.
Though a St. Louis circuit judge later vindicated Randall by ruling that that judge had had an alcoholic drink during his lunch break but was not impaired during the sentencing a short time later, the Missouri Supreme Court ordered new sentencing hearings. In 1994, both men again were sentenced to death.
Taylor was hours from being executed in 2006 when the procedure was halted. His execution date remains unscheduled.
Herndon, Nunley's attorney, told The Associated Press in August that it would be unfair to execute Nunley because he is among about a dozen death-row inmates whose 2009 lawsuit raises questions about Missouri's obtaining and administration of the lethal drugs.
With just one exception, Missouri executions have been on hold since early 2006 over concerns about whether they violate the U.S. Constitution's guarantee against undue suffering. That year, a federal judge halted executions in the state after a surgeon who previously supervised them testified he was dyslexic, sometimes transposed numbers and operated without written procedures or supervision.
The state then developed written protocols that later were upheld by the same federal judge who halted the executions. In June, the U.S. Supreme Court refused to hear an appeal, essentially clearing the way to resume executions.
Missouri has executed 67 men since the death penalty was reinstated in 1989, but only one since October 2005. The lone exception was Dennis Skillicorn, put to death in May 2009 for killing a man who stopped to help when a car Skillicorn and two others were in broke down on Interstate 70 near Kingdom City.