An agonizing legal drama leaves three executions on hold in Texas

Unusual situation results after U.S. court declines to decide on appeal


HOUSTON - The clock ran out on Billy Joe Vickers in the Huntsville death house Tuesday night, but when midnight struck, he was still alive in his cell, smoking cigarette after cigarette and digesting a heavy meal that was to have been his last.

Hours earlier, for the first time anyone could remember, a federal appeals court had essentially thrown up its hands, declining to decide on deadline whether to let Vickers die or stay his execution. That threw his fate to the Texas Department of Criminal Justice, which had been legally commanded to kill him that night. But would it do so with his appeal unresolved?

A lawyer for Vickers, Keith S. Hampton, circled the prison, frantic to get in. There was "a gentlemen's agreement" not to kill his client, he kept insisting.

"I just want to make sure the executioner understands the agreement," he said.

The excruciating drama as defense lawyers and the Texas attorney general's office exchanged frenzied telephone calls and futilely awaited a ruling from the entire 5th U.S. Circuit Court of Appeals, in New Orleans, concluded an eventful week in the struggle over the death penalty in Texas.

Three prisoners were to have been executed this week in Texas, which leads the nation in executions since the Supreme Court allowed reinstatement of capital punishment in 1976. But none of them was, leaving the state's tally for the year at 24 and pushing the cases into the new year with thorny legal issues unresolved. But Texas justice officials said that the executions of the 445 men and eight women on death row would proceed as scheduled.

Two developments in particular intrigued lawyers for several of the defendants: the hesitation of the 5th Circuit to rule at a crucial moment and a decision by Associate Justice Antonin Scalia of the Supreme Court to grant a stay to another of the three Texas death row inmates the following day.

"I think they dropped the ball," said Jordan Steiker, a law professor at the University of Texas, Austin and a specialist in capital punishment cases, speaking of the Circuit Court and calling its failure to rule "very unseemly from the Supreme Court's point of view."

Scalia, the high court's circuit justice for the region, might have acted to preserve the judiciary's authority in such cases, Steiker said.

The intense week began with a lawsuit filed Monday in federal court here by Jim Marcus of the Texas Defender Service and David Dow of the Texas Innocence Network, two groups that represent death row inmates, for three prisoners who were scheduled to die this week - Vickers, 58; Kevin Lee Zimmerman, 42; and Bobby Lee Hines, 31.

Vickers was convicted of shooting a grocer coming home with a bag of money in 1993. Zimmerman was convicted of stabbing another man to death in a motel in 1987. Hines was convicted of robbing and strangling a young woman in her apartment in 1991. The lawsuit claimed the men would suffer cruel and unusual punishment from pancuronium bromide and other drugs in the lethal injections because they mask pain and suffering and have been outlawed for euthanizing pets.

The court summarily dismissed the suit as a habeas corpus challenge that had been already rejected. On Tuesday, with Vickers set to die between 6 p.m. and midnight, the appeal went to a panel of the 5th Circuit. The judges called the evidence on the drugs seemingly stronger than that previously offered but said they were bound by the court's precedents to also reject the appeal as repetitious.

Only the full 17-member court could overturn a precedent, so about 4 p.m. Marcus and Dow then filed for a hearing by the entire court. They also e-mailed, but did not legally file, their appeal papers to the U.S. Supreme Court.

Meanwhile, hours before, Hinds, who was scheduled to die Thursday, won a reprieve by a ruling from the state Court of Criminal Appeals, which granted him a stay on grounds of possible mental retardation.

At Huntsville, Vickers ate a last meal and waited in a holding cell near the execution chamber.

But as the clock ticked down, a court representative called to say the judges would take no action either way that night. "That's the first time we know of in 21 years," said Mike Viesca, a state criminal justice spokesman.

The warrant was allowed to expire, which effectively granted Vickers a reprieve for at least 30 days.

Zimmerman was set to die the next night, Wednesday. Dow and Marcus formally filed the appeal papers they had e-mailed to the Supreme Court. Minutes before 6 p.m., Scalia ordered Zimmerman's execution stayed, pending further review.

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