[Deathpenalty] death penalty news----ALABAMA

[Rick Halperin]

June 8



ALABAMA----impending execution

Alabama Supreme Court denies stay: Execution of Robert Bryant Melson


Tonight Alabama Death Row inmate Robert Bryant Melson is set to die by lethal 
injection for the 1994 slayings of three fast foot restaurant workers in 
Gadsden. It would be the second execution for Alabama in two weeks.

Meanwhile, Melson -- convicted of numerous counts of capital murder, attempted 
murder, and robbery in the shooting at Popeye's -- is awaiting action by 
federal and state appeal courts on his requests to stay the execution set for 6 
p.m. at Holman Correctional Facility in Atmore.

Melson was granted a temporary stay last week, but the Supreme Court of the 
United States vacated the stay Tuesday night.

The stay of the execution was lifted in an order issued by Associate Justice 
Clarence Thomas. Three of the nine Supreme Court associate justices-- Ruth 
Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor-- said they did not want to 
vacate the stay of execution, according to the order.

Wednesday morning, John Palombi and Leslie Smith with the Federal Defenders for 
the Middle District of Alabama filed a motion to the 11th Circuit Court of 
Appeals and one to the Alabama Supreme Court for stays.

In the state supreme court motion, Melson's attorneys say the federal courts 
have yet to rule on whether Alabama's method of execution is unconstitutional 
and violates the eighth amendment. The lawyers' filing to the 11th Circuit 
states that Melson has a likelihood of winning an appeal on his challenge to 
midazolam, the first drug in the lethal three-drug method. Melson's attorneys 
asked the 11th Circuit to stay the execution pending the results of Melson's 
challenge.

The challenge, which lists four other inmates as petitioners, concentrates on 
midazolam, the first drug in the execution cocktail. Melson and the other 
inmates claim the drug does not completely sedate a person so that they cannot 
feel the pain of the second and third drugs in the cocktail, which stop the 
heart and breathing.

In the state supreme court motion, Melson's attorneys say the federal courts 
have yet to rule on whether Alabama's method of execution is unconstitutional 
and violates the eighth amendment.

A lower court had dismissed the challenge, but Melson's attorneys appealed to 
the 11th Circuit and asked for a temporary stay last week. That temporary stay 
was granted last Friday before being struck down Tuesday by SCOTUS.

On April 15, 1994, Melson and Cuhuatemoc Peraita robbed the Gadsden Popeyes 
Chicken and Biscuits restaurant, where had previously worked. After taking 
approximately $2,100, the men herded the four Popeye's employees into the 
store's freezer. Moments later, survivor Bryant Archer said, the freezer door 
opened and Melson began firing. Nathaniel Baker, 17; Tamika Collins, 18; and 
Darrell Collier, 23, were all fatally shot in the freezer; Archer was shot five 
times, but was able to stand up, walk to the office, and call police.

When officers arrived, Archer told police one of the attackers was Peraita. 
Archer also said Peraita drove a black Monte Carlo, so police issued a lookout 
bulletin for the vehicle. Melson and Peraita were arrested about an hour later.

After his conviction in 1996, Melson has been on death row at Holman 
Correctional Facility in Atmore. Peraita was originally sentenced to life in 
prison, but moved to death row in 2001 after fatally stabbing another Holman 
inmate.

Robert Melson is set to be executed Thursday for his role in the Popeye's 
shooting of 1994, which left three people dead. Bryant Archer, the surviving 
victim, speaks out to AL.com about the shooting and his life now.

According to a spokesperson for Gov. Kay Ivey on Wednesday, the governor 
received a request for clemency from Melson.

Alabama has already carried out three executions using the three-drug protocol 
that Melson is challenging, including the May 25 execution of Tommy Arthur in 
which the 11th Circuit denied a stay. Two other Alabama inmates who were 
executed -- Ronald Bert Smith and Christopher Brooks -- also were co-plaintiffs 
in the case with Melson.

Court documents filed in Melson's case argue the state's switch to midazolam 
from pentobarbital during executions has caused a "method of execution that has 
failed to work properly in four states, including Alabama."

During Smith's Dec. 8 execution, he heaved, coughed and gasped for breath for 
about 13 minutes after apparently being administered midazolam. At times his 
left eye also appeared to be slightly open. He underwent two consciousness 
tests to make sure he couldn't feel pain before the execution continued. 
Smith's attorneys called it "botched," but Alabama Prison Commissioner Jeff 
Dunn said Smith's execution went as outlined in the prison system's execution 
protocol.

Archer will not attend the execution, he said, because of a previously planned 
vacation with his wife and children.

"That's another way God said, 'Hey, get out of town,' " he said. "[Melson] has 
to have to live every day with knowing what he did ... 23 hours a day in a 
cell. That's his punishment."

Alabama Gov. Kay Ivey as of Wednesday had responded to a request by Melson for 
clemency.

(source: al.com)