UPDATE: Delaware execution still on schedule

Lawyers for a convicted killer who has spent about 18 years on Delaware’s death row are still trying to get a stay of execution, which is scheduled to happen early Friday morning. 

Robert Jackson will be executed just after midnight tonight unless the Third Circuit Court of Appeals Philadelphia or the U.S. Supreme Court step it to stop it.  On Wednesday, both the Delaware Supreme Court and federal Judge Sue Robinson in Wilmington rejected requests to halt the execution.

Jackson was convicted of killing a Hockessin woman in 1992 with an ax during a burglary.

—- From Wednesday:

In the first of two scheduled court hearings Wednesday, attorneys for the state also presented arguments that Robert Jackson III’s death by lethal injection should proceed as scheduled.

US District Court Judge Sue Robinson heard just over one hour of arguments centered around the planned use of pentobarbital, the first of a three-drug injection used in the procedure.  Pentobarbital would replace sodium thiopental after the maker of that drug stopped manufacturing it.

Attorneys for Jackson said the Department of Correction knew for several months that sodium thiopental would no longer be available, but waited until May to officially change its death penalty protocol. They contended that during the use of pentobarbital in several executions in other states the effects were unpredictable, its anesthetic impact was questionable, and that some prisoners experienced apparent pain.

Deputy Attorney General Paul Wallace countered that the state takes careful steps to make sure that a condemned inmate is unconsciousness after the first administration of pentobarbital before two other lethal drugs are released, or a second dose of the anesthetic drug would be given. 

“How can it possibly be rushing after 19 years?,” Deputy Attorney General Paul Wallace asked.

Wallace also said that the state would take careful steps to make sure that a condemned inmate is unconsciousness after the first administration of pentobarbital before two other lethal drugs are released, or a second dose of the anesthetic drug would be given.

Jackson was found guilty in 1993 for an ax murder in Hockessin.  47-year-old Elizabeth Girardi was killed when she encountered Jackson and a codefendant during a burglary at her home in 1992.

In another hearing scheduled for Wednesday afternoon, the Delaware Supreme Court is being asked to put the execution on hold to allow the U.S. Supreme Court to consider the case.  The Federal Habeas office in Philadelphia is handling that part of the appeal.  Marc Bookman, Executive Director fo the Atlantic Center for Capital Representation, is the point person for media requests.  He says the argument made to court is that a stay should be put in place on the execution to allow the U.S. Supreme Court to consider the argument that when Joe Hurley withdrew from the Jackson case Judge Vincent Bifferato should have told Jackson’s new attorney why Hurley withdrew.

The state Supreme Court ruled in May that a sealed envelope from Judge Bifferato on Hurley’s withdrawal did not influence the outcome of the case.  Now the agrument has been changed to ask whether it is reasonable for the U.S. Court should be allowed to consider the argument.

There’s no indication when a ruling would be issued in either argument.

If Jackson is put to death, it would be Delaware’s first execution since 2005.