State prosecutors, angry their side wasn't heard Monday before convicted killer William Andrews was granted a stay of execution, say they will ask the court to reconsider.
Utah Supreme Court justices voted to grant the stay only hours after Andrews' attorneys asked for one. The decision cancels a Sept. 14 execution date handed down late last month and continues Andrews' 14-year legal battle against his death sentence.The blow was particularly hard for state prosecutors, who felt confident Andrews was quickly running out of options after the U.S. Supreme Court rejected his final plea earlier this year.
Officials in the state attorney general's office said Monday afternoon they were ready to respond to the motion for a stay of execution when they received word the stay was granted.
"This is highly irregular," said Paul Warner, deputy attorney general. "They made the decision without any input from the state. The court issued the stay on its own. We had a response prepared, but we weren't able to file it."
Assistant Attorney General Earl Dorius said the court was aware the state wanted its side heard. Prosecutors expected to get that chance Aug. 15. "We will have to petition for reconsideration so we can be heard," he said.
The justices provided no reason for the stay, but officials close to the court said it was granted because the court was scheduled to hear a separate appeal from Andrews two days before the execution.
The appeal, which contends Andrews' previous attorney was incompetent, created a peculiar dilemma for the court and the state Board of Pardons. Andrews had asked the board for a clemency hearing, but the board was not likley to grant one as long as the appeal was pending.
However, as long as no stay was in effect, state officials said they could have executed Andrews even if the appeal and the clemency hearing still were pending.
Anticipating a last-minute drama in September, state prosecutors were prepared to ask the court to consider the appeal sooner, but they never got a chance.
Andrews, convicted along with Pierre Dale Selby in 1974 of torturing five people - three of whom died - in the Ogden Hi Fi Shop, filed a motion through his attorneys, Gorden Greiner, Joseph Tesch and Timothy Ford, on Monday morning asking for a stay.
In the motion, the attorneys argued that Utah's criminal procedure rules required a stay of execution if a separate appeal is pending.
But Warner said the state was prepared to fight that motion by arguing Andrews could have appealed his attorney's competence in the past but chose not to.
Andrews contends his previous attorney did not properly inform jurors they could return a verdict of second-degree murder, for which Andrews could not have received the death sentence.
His attorneys contend Andrews did not directly kill any of the victims. Selby, executed by lethal injection last August, told the Board of Pardons Andrews did not fire the fatal shots.
Andrews is the only person on Utah's death row who did not kill anybody, the attorneys claim.
However, state prosecutors argue Andrews forced the victims to drink Drano, a commercial cleaner. The cleaner eventually would have killed the victims if they weren't shot.
The court last granted Andrews a stay in February 1985. That stay was not lifted until earlier this year.