Tennessee lethal injection questions remain

For the first time in almost a year, an inmate is scheduled for execution in Tennessee, but death penalty opponents say a federal judge’s ruling last year that the state’s lethal injection protocol is unconstitutional stands in the way.

The Tennessee Supreme Court granted a motion on Monday to set an early 2009 execution date for convicted murderer Steve Henley. Henley was convicted in 1986 of the murders of Fred and Edna Stafford in rural Jackson County.

Court records show Henley first shot the couple in a dispute over money allegedly owed Henley’s family. He then poured gasoline on the Stafford’s home and burned it with the couple inside — Edna Stafford was wounded, but alive when the blaze was set.

Yet attorneys in the case said they will file a motion in Middle Tennessee U.S. District Court opposing the execution based on a ruling last year by District Court Judge Aleta Trauger saying Tennessee’s lethal injection protocol violates an inmate’s Eighth Amendment rights.

“We are filing a motion in federal court today to set aside the execution date based on that same ruling,” said Paul Davidson, Henley’s attorney.

Trauger’s ruling last September in the case of convicted killer Edward Jerome Harbison brought a string of executions in Tennessee to a halt. In strong language, Trauger ruled the state’s three-drug execution protocol was unconstitutional, constituting cruel and unusual punishment. The Trauger ruling effectively stopped lethal injection executions in the state, including playing into the successful legal argument for a stay of execution for convicted killer Pervis Payne.

Payne’s attorneys argued last year that a pending U.S. Supreme Court hearing of a case questioning Kentucky’s lethal injection protocol was another valid reason to stay Payne’s execution. In April, the U.S. Supreme Court upheld Kentucky’s protocol.

It is unclear whether that ruling would have any legal bearing on future Tennessee death penalty appeals, though the office of Tennessee’s Attorney General points to the case of convicted killer Ralph Baze in Kentucky as the legal standard in lethal injection cases.

“It is position of the Attorney General that the decision of the Supreme Court in Baze is controlling on the lethal injection issue and that both the Harbison and Payne cases should continue to move forward toward execution as soon as that issue is resolved,” AG spokesperson Sharon Curtis-Flair said Tuesday.

Henley is now scheduled for a Feb. 4, 2009, execution at Riverbend Maximum Security Institution here in Nashville where he sits on death row. However, death penalty opponents say the Trauger ruling — which is still being litigated in the U.S. 6th Circuit Court of Appeals in the Harbison case — will remain a factor in Tennessee’s complicated appellate system for death penalty cases.

“If the lethal injection protocol issues are not resolved, my guess is that they would pursue a stay under that ruling,” said Stacy Rector of the Tennessee Coalition to Abolish State Killing.