State prosecutors still don't know whether the state Supreme Court has considered their arguments as to why convicted killer William Andrews should be executed next month.
But they know Andrews, convicted 14 years ago for his part in the torture murders of three people in the Ogden Hi Fi Shop, will not likely die Sept. 14 as ordered by 2nd District Court Judge Ronald O. Hyde.The Utah Supreme Court voted 3-2 Thursday to deny the state attorney general's request that it reconsider a stay of execution granted earlier this week.
They also voted against a request to speed consideration of a separate appeal from Andrews the court is scheduled to hear Sept. 12.
If the court had agreed to hear the appeal earlier, the state may have been able to execute Andrews as scheduled.
Instead, if Andrews is eventually executed, he likely will have extended his life through legal appeals longer than any other executed prisoner in modern history, according to Attorney General David Wilkinson.
"This means two of the three executions we've had in the past year and a half will have set a new record," said Wilkinson, angry about the delays. Andrews' partner in the killings, Pierre Dale Selby, set a record by surviving more than 13 years after his crime, Wilkinson said.
"I think 14 years and six months is way too long."
State prosecutors had asked the court to reconsider the stay because it was granted before they had a chance to argue against it. Andrews attorneys asked for the stay Monday morning and received it that afternoon.
But the request was rejected by justices Gordon R. Hall, Michael D. Zimmerman and Christine M. Durham. Justices I. Daniel Stewart and Richard C. Howe dissented.
No explanation was attached to the decision, leaving prosecutors to wonder if the justices considered their arguments against the stay or whether they merely considered whether to reconsider.
"I'm not sure they ever addressed the merits of the stay," said Paul Warner, deputy attorney general.
State procecutors now must wait until the state Supreme Court rules on Andrews' appeal and lifts the stay of execution before they can return to 2nd District Court and ask for another death warrant.
The appeal claims Andrews' former attorney was incompetent because he did not properly inform jurors they could return a verdict of second-degree murder, for which Andrews could not have received the death sentence.
Warner said an outside chance still exists Andrews could be executed Sept. 14. But for that to happen, the court would have to rule immediately on the appeal and lift the stay. That is unlikely.
The timing of the appeal proved to be a life-saver for Andrews, who was quickly running out of options following a final rejection by the U.S. Supreme Court earlier this year.
Because they planned to hear the appeal only two days before the scheduled execution, state Supreme Court justice would have little time in which to issue a ruling.
Meanwhile, the State Board of Pardons was not likely to grant Andrews a final clemency hearing as long as the appeal was pending. It was unlikely they would have held a hearing in the few hours between the court's quick ruling and the execution.
State officials, however, said they could have executed Andrews even if the appeal and the clemency hearing still were pending.
That possibility likely prompted the justices to grant the stay.
Andrews' attorneys appear hopeful they can keep their client alive. They 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 procecutors argue Andrews forced the victims to drink Drano, a commercial drain cleaner. The chemical would eventually have killed the victims if they hadn't been shot.
The court last granted Andrews a stay in February 1985, which was not lifted until earlier this year.