U.S. appeals court upholds Missouri stay of execution

Tuesday, October 19, 2010 | 2:11 p.m. CDT

ST. LOUIS — A federal appeals court on Tuesday upheld the stay of execution of one of two Missouri inmates condemned for the 1989 abduction, rape and stabbing death of a Kansas City-area teenager.

The St. Louis-based 8th U.S. Circuit Court of Appeals' ruling marked the latest last-minute legal victory for Roderick Nunley. A day earlier, a Kansas City federal judge ruled that the inmate was entitled to the execution stay while the Missouri Supreme Court considered his latest appeal over due-process claims.

Nunley was scheduled to be put to death by injection at 12:01 a.m. Wednesday at an eastern Missouri prison.

It was not immediately clear whether the state would appeal the matter, perhaps to the full 8th Circuit or the U.S. Supreme Court. "We are reviewing the decision and looking at our options," said Nanci Gonder, a spokeswoman for Missouri Attorney General Chris Koster.

Messages left Wednesday with Nunley's attorney were not immediately returned.

In issuing the execution stay Monday, Chief U.S. District Judge Fernando Gaitan Jr. found Nunley was entitled to the delay to argue that his sentence should have been determined by a jury. Gaitan put the matter back with the state's high court to decide 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.

Koster's office quickly countered, asking the 8th Circuit to reverse Gaitan's ruling and put the execution back on track, claiming 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."

But a three-judge 8th Circuit wasn't swayed, unanimously agreeing in a two-paragraph opinion that Gaitan's court crafted a "well-reasoned" ruling and "did not abuse its discretion to grant a stay to fully develop the record and decide the (due-process) issue."

Nunley also has sought clemency from Gov. Jay Nixon.

Nunley, 45, 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.

Authorities said Nunley and Taylor were on drugs when they stole a car then abducted 15-year-old Ann Harrison from a school bus stop near her home. 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 with Harrison's body in the trunk. Nunley later gave a videotaped confession.

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.

Although 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.

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 once since October 2005.

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