Amid a flurry of last-minute court filings Wednesday, attorneys for Billy Ray Irick and the State of Tennessee argued whether Irick’s impending Thursday execution should be delayed.
The U.S. Supreme Court is currently considering the matter, but it has not yet issued a decision. The high court is perhaps the final legal avenue available to Irick -- a Supreme Court decision denying a stay would almost certainly guarantee Irick's execution going ahead as scheduled at 7 p.m. on Thursday at the Riverbend Maximum Security Institution.
Irick was convicted of the 1985 rape and murder of 7-year-old Paula Dyer in her home in East Tennessee .
Tuesday, a federal public defender for Irick asked U.S. Supreme Court Justice Elena Kagan – the justice assigned to the federal court circuit that includes Tennessee – to stay Irick’s execution .
Irick’s attorney also filed a motion asking that Irick’s case be heard in front of the entire Supreme Court to consider a new assertion that Irick should not be executed because his attorney says Irick was mentally ill at the time of the offense.
According to Supreme Court rules, Justice Kagan has the ability to issue a decision on the stay of execution herself, or she can refer the question to the entire court. In that case, the consent of five justices would be required. With Justice Anthony Kennedy’s retirement, only eight justices currently sit on the court.
In documents filed Tuesday, Irick’s attorney argues that Irick’s execution should be stayed because he is currently part of a state lawsuit challenging the use of Tennessee's three-drug lethal injection protocol. His attorney argues the legal process regarding that lawsuit should play out before Irick is executed.
Justice Kagan apparently asked the State of Tennessee to file a response to Irick’s assertions – a move that Nashville attorney David Raybin said is uncommon, and perhaps an indication that the court may be inclined to grant a stay.
In the state’s response filed Wednesday afternoon , Tennessee Attorney General Herbert Slatery said the state should be able to go ahead with the execution because Irick’s state lawsuit is not likely to be successful.
The state also said the legal procedure Irick’s attorney wants the Supreme Court to undertake to hear Irick’s mental illness arguments – known as an original writ of habeas corpus – hasn’t been exercised in over 90 years. The state also argued there is no federal court judgment prohibiting the executions of people who were mentally ill at the time of the offense. Slatery accused Irick’s attorney of “forum shopping” to prevent Irick’s execution.
Late Wednesday afternoon, Irick’s attorney filed a reply to the state’s response , denying the state’s “forum shopping” allegations, and said it is time for the Supreme Court to take up the larger issue of whether mentally ill individuals should be exempt from the death penalty.
“If Mr. Irick is executed tomorrow, his life will be extinguished without an answer to this important question,” Irick’s attorney Kelley J. Henry stated in the reply.
The appeal to the U.S. Supreme Court comes after the Tennessee Supreme Court refused to issue a stay in Irick's execution . Gov. Bill Haslam has also refused to grant clemency in the case.
Also Thursday, a federal district judge in Nashville denied a last-ditch effort from Irick, who asked to see proof that the state tested the three drugs that are set to put him to death.