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Texas Court Issues Temporary Stay Of Execution Amid Coronavirus ‘Health Crisis’

John Hummel was scheduled to be executed on Wednesday. The court, citing the current health crisis, has postponed the execution for 60 days.

The Texas Supreme Court building, where the Texas Court of Criminal Appeals is located.WhisperToMe via Wikipedia

The Texas Court of Criminal Appeals has postponed the state’s planned execution of John Hummel on Wednesday, citing the growing threat of COVID-19. 

In its order today, the judges presiding over the state’s highest criminal court wrote they had “determined that the execution should be stayed…in light of the current health crisis and enormous resources needed to address that emergency.” It stayed Hummel’s execution for 60 days, blocking Texas prison officials’ plan to move forward despite risks associated with the novel coronavirus.

Texas had at least 80 confirmed cases of COVID-19 as of Monday afternoon, according to the New York Times. 

On Friday, Hummel’s attorney, Michael Mowla, asked the court to stay his execution because of the risks the pandemic poses to witnesses, staff, and Hummel himself. In a 13-page filing, Mowla listed several possibilities that could arise in Hummel’s final days as a result of COVID-19. 

Mowla wrote that Hummel’s fate lies with several people such as Governor Greg Abbott and the Board of Pardons and Paroles, which must rule on his clemency petition, along with judges who will rule on his last appeals. “Disruptions in any one of those offices—or the illness of a judge or decision maker—could render it impossible for Hummel to receive review,” Mowla wrote.

He also argued that the novel coronavirus increases the possibility of a botched execution. Specific members of the execution team are trained to perform critical duties such as inserting the I.V. line and injecting the lethal drug, he wrote, and their absence due to the disease could result in the execution being “botched in an unexpected and grotesque manner,” reads the filing. 

Additionally, Mowla argued that as part of the execution, witnesses and staff will be gathered in close quarters. The disease is known to spread through respiratory droplets and surfaces that people touch. And some people carrying the disease do not exhibit any symptoms, meaning that it could be unknowingly transmitted to those present, who then may pass it on to others, including prisoners who are especially vulnerable, he wrote. 

Finally Mowla argued that Texas Department of Criminal Justice’s (TDCJ) recent cancellation of visits would mean that Hummel could not receive visitors in the days leading up to his execution, as ordinarily allowed.

Jeremy Desel, a spokesperson for the TDCJ, which runs the state’s prisons, told The Appeal on Monday before the stay was issued that prison officials would move forward with the execution and outlined the agency’s preparedness plan. He said TDCJ has added enhanced screening procedures to minimize the risk of the novel coronavirus spreading. 

Desel told The Appeal that Hummel’s visitors were at the Texas State Penitentiary on Monday awaiting screening before entering the facility in Huntsville. Visitors would be asked to fill out a questionnaire and depending on their answers, officials would then determine whether to perform a temperature check, according to Desel. The same will apply to legal visits, though he said no attorneys had requested to visit Hummel yet. 

Desel added “there is no threat to staff.” As evidence, he pointed to the screening measures that TDCJ has introduced. 

Tarrant County District Attorney Sharen Wilson, who represents the county that prosecuted Hummel, opposed Hummel’s request for a stay. In her filing to the appellate court, she argued that “none of his contentions affect the validity of his capital-murder or death sentence themselves” and said that should COVID-19 pose an “insurmountable impediment” to Hummel’s execution, either the courts of Abbott will stop it. She added that restricting visits was not unconstitutional.

Texas has six executions planned, including Hummel, between now and the expiration of his 60-day stay. It is planning to execute Tracy Lane Beatty on March 25. The next execution outside of Texas is scheduled for May 19 in Missouri, when the state is planning to execute Walter Barton. 

Rob Owen, an attorney in private practice in Chicago who has represented prisoners in death penalty cases around the country, told The Appeal that it’s critical that states halt executions. As an execution date approaches and attorneys urgently try to save their client’s lives, they have to carry out tasks, such as putting together a clemency petition, that require movements currently stymied by the response to COVID-19. “There’s just a whole lot of profound problems with deciding to go forward with executions in an environment where travel is impossible, communications are restricted, and the ability of advocates to fully examine the circumstances of the case and make sure everything is legal and sound is compromised,” he said.

He added that courts should extend filing deadlines, which can be the difference between life and death in capital cases, since the current lockdown means that crucial steps of the appellate process such as examinations and investigations are on hold. 

Texas has postponed executions due to outside circumstances on two occasions. On Sept. 11, 2001, then-Governor Rick Perry granted a 30-day reprieve to Jeffery Tucker, who was scheduled to be executed that day. And in 2017, a Bexar County judge withdrew an order to set an execution date for Juan Castillo because Castillo’s attorney lived in a county where Abbott had declared a state of disaster. 

Texas eventually executed both of them. 

“Nobody is saying you can never kill this person,” Owen said. “They’re saying under these extraordinary and unprecedented circumstances it is reckless and cruel to proceed with executions.”