VADP

By Garry Mitchell

Associated Press

Oct 24, 2007 

A federal appeals court Wednesday granted a stay of execution for Daniel Lee Siebert, a terminally ill killer who claimed that his cancer medication would counteract with a lethal injection, inflicting unnecessary pain. 

In granting the stay, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta reversed an order by U.S. District Judge Mark Fuller in Montgomery. 

Attorneys on both sides were not immediately available for comment on the decision. 

Siebert, 53, who has been on Alabama's death row for more than 20 years and has terminal pancreatic cancer, was facing lethal injection Thursday at Holman prison near Atmore. 

Siebert was condemned for the Feb. 19, 1986 strangulation deaths of Sherri Weathers, 24, and her two sons, 5-year-old Chad and 4-year-old Joey at their Talladega apartment. He was also convicted separately of capital murder and sentenced to death for the slaying of Linda Jarman, a neighbor of Weathers, who was killed the same night. 

Siebert's case appeared headed for the U.S. Supreme Court, which already has agreed to hear a lethal injection challenge from Kentucky. Siebert's attorney, Thomas M. Goggans of Montgomery, also sought a delay until there's a ruling in the Kentucky case - a request opposed by the Alabama attorney general's office. 

Assistant Attorney General Clay Crenshaw, the state's capital punishment chief, told the 11th Circuit in a filing Wednesday that Siebert's claim about his cancer medication possibly counteracting with a three-drug cocktail used in the execution was never supported by evidence. 

Alabama ensures that the inmate is unconscious by administering a lethal dose of sodium thiopental, according to the court filing, and potassium chloride stops the heart. 

Siebert argues the mix of drugs would likely result in an unacceptable risk of unnecessary pain in violation of the protections against cruel and unusual punishment found in the Eighth Amendment of the U.S. Constitution. 

"Siebert's speculative Eighth Amendment claim pales in comparison to the interest the general public has in the orderly administration of justice," Crenshaw told the 11th Circuit. "Put simply, the public has an interest in seeing Siebert held accountable for his horrific crime." 

Siebert's attorney submitted a letter from an oncologist, Dr. Jimmie Harvey of Birmingham, that says "complications could arise" from the drug combinations. Harvey speculates that Siebert could regurgitate his stomach contents during an execution and that he might have compromised veins. 

Crenshaw said Harvey's opinion should not be considered. There is no indication that he examined Siebert or that any of Siebert's extensive medical records support that conclusion, Crenshaw wrote. 

Siebert's attorney also has challenged lethal injection as a form of punishment. The state contends Siebert exhausted his state and federal appeals on March 19 when the U.S. Supreme Court refused to hear his case. He filed the lethal injection challenge after that date, and the state claims he waited too late to file it. 

Death penalty opponents had urged Gov. Bob Riley to delay the execution because Siebert has cancer and is only expected to live a few months, but Riley declined Monday. The governor said the state should carry out the jury's wishes that Siebert die for murders that "were monstrous, brutal and ghastly." 

Weathers was a student at the Alabama Institute for the Deaf and Blind in Talladega. Siebert had started dating her after he was offered a job in the institute's theater program as a set designer, according to court records. 

Siebert also was linked to other crimes inside and outside Alabama. 

Alabama has revised its lethal injection protocol slightly since the U.S. Supreme Court agreed to hear a challenge to lethal injection in Kentucky - a ruling that could come next year and have nationwide impact. 

Siebert's attorney contends Siebert should be granted a stay until the Kentucky case is heard. But Siebert doesn't qualify for a delay based on issues in the Kentucky challenge, Crenshaw told the 11th Circuit in his filing. 

"Indeed, it is no different from any other eleventh-hour challenge to an execution. It is dilatory and it does not justify the granting of a stay of execution," the filing says.