Appeals court upholds order delaying this week’s execution of Texas inmate for deadly carjacking

By JUAN A. LOZANO
Associated Press

HOUSTON (AP) — A federal appeals court on Monday upheld a ruling delaying this week’s scheduled execution of a Texas inmate for fatally shooting an 80-year-old woman more than two decades ago.

Jedidiah Murphy, 48, had been set to receive a lethal injection Tuesday evening at the state penitentiary in Huntsville for the October 2000 death of Bertie Lee Cunningham during a carjacking in the Dallas suburb of Garland.

But last week, a federal judge in Austin issued an order staying Murphy’s execution after the inmate’s lawyers had filed a lawsuit seeking DNA testing of evidence related to his 2001 trial.

The 5th U.S. Circuit Court of Appeals on Monday upheld the judge’s order. The three-judge panel said that another case before the appeals court that was brought by a different Texas death row inmate raises similar issues.

“We agree with the district court that a stay is appropriate at least until a decision in that case,” the three-judge panel wrote.

The Texas Attorney General’s Office had sought to overturn the stay order. A spokesperson for the attorney general’s office did not immediately respond to an email seeking comment on whether it would appeal Monday’s ruling.

Murphy’s attorneys have questioned evidence of two robberies and a kidnapping used by prosecutors during the punishment phase of his trial to convince jurors who had already convicted him of capital murder that he would be a future danger, a legal finding needed to impose a death sentence.

Murphy has admitted his guilt in Cunningham’s death but has long denied he committed the other crimes. His attorneys have argued the crimes were the strongest evidence prosecutors had of future dangerousness but they allege the evidence was riddled with problems, including a questionable identification of Murphy by one of the victims.

Murphy’s lawyers believe the DNA testing would help show he did not commit the robberies and kidnapping.

“It is difficult for the Court to conclude that the negation of this evidence would not have affected the jury’s decision in the (trial’s) punishment phase,” U.S. District Court Judge Robert Pitman wrote in his Friday order granting the stay of execution.

Texas prosecutors have argued against the DNA testing, saying state law only allows for post-conviction testing of evidence related to guilt or innocence and not to a defendant’s sentence.

Prosecutors say they put on “significant other evidence” to show Murphy was a future danger.

“The public’s interest is not advanced by postponing (Murphy’s) execution any further … Two decades after (Murphy) murdered Bertie Cunningham, justice should no longer be denied,” the Texas Attorney General’s Office wrote in court documents.

If Murphy’s execution took place Tuesday, it would have occurred on World Day Against the Death Penalty, an annual day of advocacy by death penalty opponents.

Murphy has long expressed remorse for the killing.

“I wake up to my crime daily and I’ve never gone a day without sincere remorse for the hurt I’ve caused,” Murphy wrote in a message earlier this year he sent to Michael Zoosman, who had corresponded with Murphy and is co-founder of L’chaim! Jews Against the Death Penalty. Murphy is Jewish.

Last week, the Texas Board of Pardons and Paroles unanimously declined to commute Murphy’s death sentence to a lesser penalty or grant a six-month reprieve.

Murphy’s lawyers have said he also has a long history of mental illness, was abused as a child and was in and out of foster care.

Murphy’s lawyers also had filed a lawsuit last week alleging the execution drugs he would have been injected with are unsafe because they were exposed to extreme heat and smoke during an Aug. 25 fire at a prison unit in Huntsville where they were stored.

In a separate order, Pitman denied that request to stay Murphy’s execution, saying the inmate’s claims of unsafe drugs were undermined by test results that showed the drugs were “potent and sterile.”

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