06/07/2006

By KRISTEN GELINEAU  / Associated Press

A federal judge granted a temporary stay of execution Wednesday for a triple killer set to die Thursday.

The court granted the delay based on Percy Walton's challenge that Virginia's protocols surrounding lethal injection are unconstitutional.

The Supreme Court heard arguments in April in the case of Hill v. McDonough, which challenges the way states execute killers. The court's ruling will determine whether inmates can file last-minute civil rights challenges claiming their deaths would be cruel and unusual punishment.

In issuing her stay, U.S. District Judge Rebecca Beach Smith wrote that "the most prudent course of action" would be to delay Walton's execution until the high court rules in the Hill case later this month.

The Virginia attorney general's office is appealing Smith's decision to the 4th U.S. Circuit Court of Appeals in Richmond, a spokesman said.

Last week in Oklahoma, a federal judge issued a last-minute stay of execution based on inmate John Boltz's argument that Oklahoma's lethal injection protocol was cruel and unusual. But the 10th U.S. Circuit Court of Appeals reversed the decision the same day and Boltz was executed.

Walton pleaded guilty in 1997 to the murders of Danville residents Jessie and Elizabeth Kendrick, a couple in their 80s, and 33-year-old Archie Moore. The victims were robbed and shot in the head; Moore's body was found stuffed in a closet, his corpse doused in cologne.

Walton's mental state has been debated for nearly a decade. His attorneys say he keeps no personal effects in his cell, except for a mountain of salt and pepper packets he likes to stack. He rarely speaks, although occasionally bursts into random bouts of laughter. The guards call him "Horse" — short for "Crazy Horse" — and complain of his unbearable stench.

And he believes if he is executed, he'll go to Burger King, his attorneys say.

The Supreme Court has ruled it unconstitutional to execute the insane and mentally retarded, but left definitions up to the states. In a petition to the high court, Walton's attorneys argue that he has schizophrenia and is incapable of understanding the concept of death, therefore making him ineligible for execution.

The petition argues that the court didn't give sufficient guidance in its Ford v. Wainwright decision in 1986, which found that executions of the insane are unconstitutional. As a result, lower courts read the decision narrowly and allow mentally ill inmates to wrongly be put to death, the petition said.

A clemency request with Gov. Timothy M. Kaine also argues that Walton is mentally retarded. The Virginia attorney general's office has argued that intelligence scores taken when Walton was 17 and 18 place him above the accepted range for mental retardation, though other evaluations were conflicting.

Elizabeth Kendrick's sister, 85-year-old Irene Jurscaga of Suffolk, began to cry upon hearing the news that Walton's execution had been delayed.

"It brings up all kinds of memories again," said Jurscaga, who had planned to witness the execution.

Walton's case is not without precedent. In 1999, then-Gov. Jim Gilmore commuted the death sentence of Calvin Swann to life in prison just four hours before his scheduled execution. Swann, who was convicted of robbing and shooting a 62-year-old man in his Danville home in 1992, had been diagnosed with schizophrenia.

Danville Commonwealth's Attorney William Fuller prosecuted both Swann and Walton's cases, but holds very different views on the fate of both men. In Swann's case, he told Gilmore that he probably would not have sought the death penalty if life without parole had been an option. Walton, on the other hand, deserves to die, Fuller said.

"When I prosecuted Walton there was absolutely no evidence presented that in any way indicated Walton was mentally retarded or mentally ill," Fuller said in an e-mail to The Associated Press. "On the other hand, the punishment phase of Swann's trial was dominated by evidence of Swann's medical records which spanned over 25 years."

Walton declined to be interviewed Wednesday.

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