Billy Ray Irick asks SCOTUS to delay execution

Billy Ray Irick has been moved to death watch, a period of increased supervision and security ahead of his scheduled execution on Thursday night, but experts say a last-minute stay is possible.

Irick’s attorneys on Tuesday asked the U.S. Supreme Court to step in and delay his death while his challenge of Tennessee lethal injection drugs is ongoing.

The move came a day after Tennessee’s high court and Gov. Bill Haslam refused to intervene. But a strong dissent from one Tennessee justice gave Irick a potential legal foothold.

The majority of Tennessee’s Supreme Court found that Irick’s lethal injection challenge wasn’t likely to succeed, and thus rejected the request for a stay. But Justice Sharon Lee issued a nine-page dissent that provided legal underpinnings that might justify a delay.

The dissent was a rare move, and it could become a flare for the U.S. justices or other federal judges as they review the request and consider a stay.

“That’s what as a lawyer you’re looking for: You’re looking for some disagreement,” said Dwight Aarons, a law professor at the University of Tennessee who studies death penalty cases. “That does help them.”

Irick’s attorneys referenced Lee’s dissent in their U.S. Supreme Court filing, arguing the issues at stake in the ongoing challenge of Tennessee’s three-drug execution method “are weighty and should only be decided after a studied review of the voluminous record.”

“Equity demands a stay of execution,” the attorneys wrote. “Denial of this motion will deny Mr. Irick his right to appeal.”

Federal public defender Kelley Henry, who is leading the inmates’ lethal injection challenge, submitted the request along with Irick’s criminal defense attorney Gene Shiles.

Experts split on likelihood of a stay for Irick

Aarons said that while Lee’s dissent would be a boon to Irick’s cause, he thought the likelihood of a federal stay was “rather remote.” He noted that the U.S. Supreme Court has allowed states with similar protocols to execute inmates.

But David Raybin, a Nashville defense attorney and death penalty expert, said a stay was still likely while ongoing litigation is being appealed.

Raybin had expected the Tennessee Supreme Court to issue a stay. Even though they did not, Raybin remained confident Irick’s execution would be delayed briefly by the federal court system.

“Based on the way these cases have been treated for other defendants, traditionally the federal courts will issue at least one or maybe two stays,” Raybin said.

Irick, 59, was convicted in 1986 of the rape and murder of 7-year-old Paula Dyer in Knox County.

In the pending lethal injection appeal, Irick and 32 other death row inmates argue that Tennessee’s new lethal injection protocol, which includes the controversial drug midazolam, subjects the inmates to excruciating pain before they die. The pain is so powerful, they have argued, that it constitutes unconstitutional torture.

The trial court rejected that argument after a two-week trial in July. Chancellor Ellen Hobbs Lyle said that executions using midazolam typically last fewer than 18 minutes, a metric that she used to determine that it would not count as cruel and unusual punishment.

A majority of the Tennessee Supreme Court said Irick had failed to present an argument that would beat Lyle’s ruling on appeal.

But Lee disagreed, saying it was plausible that an appeals court could find the three-drug cocktail unconstitutional.

“Unless the execution date is vacated, Mr. Irick — unlike the other 32 death row inmates who also have challenged the State’s method of execution — will not live to see whether the chancery court’s decision was correct,” Lee wrote.

Attorneys also cite Irick’s mental health during crime

In a separate request also filed Tuesday, Irick’s attorneys asked that the U.S. Supreme Court halt the use of the death penalty in Irick’s case because of evidence that he was psychotic and cognitively impaired when he committed the crime.

They argued that evidence had not been properly considered at previous points in Irick’s criminal trial and appeals.

Haslam dismissed that claim in a statement Monday, saying there was “extremely thorough judicial review of all of the evidence and arguments at every stage in this case.”

The governor declined to stop the execution.

Reach Adam Tamburin at 615-7265986 and atamburin@tennessean.com. Follow him on Twitter @tamburintweets.