Associated Press

MONTGOMERY, Ala. - An appellate court Wednesday refused to halt the execution of Alabama inmate Tommy Arthur, who was convicted in the 1982 killing of a man in a murder-for-hire arrangement.

In a split decision, the 11th U.S. Circuit Court of Appeals upheld a federal judge’s decision that dismissed Arthur’s lawsuit challenging the state’s death penalty procedure as unconstitutional. The judges also denied Arthur’s request to stay his execution scheduled for Thursday night at a state prison in south Alabama.

Arthur was convicted of murdering Troy Wicker in 1982 as the man slept inside his Muscle Shoals home. Investigators said Arthur was having an affair with Wicker’s wife and she paid him $10,000 to kill her husband. Arthur was in a prison work-release program in Decatur at the time of the slaying after being convicted of the 1977 murder of his sister-in-law in Marion County.

Arthur has been given an execution date on six previous occasions but has won reprieves. The Alabama attorney general’s office in July had asked the court to set an “expedited seventh execution date” after a federal judge dismissed Arthur’s most recent challenge.

In his latest appeal, Arthur’s attorneys had argued a federal judge prematurely dismissed the lethal injection challenge after misapplying a requirement for inmates to name an alternate execution method.

The U.S. Supreme Court requires inmates challenging death penalty procedure to name a plausible execution alternative. Arthur suggested a firing squad and another lethal injection drug, but the judge said Arthur had not identified a source for alternate drugs and a firing squad wasn’t explicitly named as an allowed form of execution in Alabama law.

The 11th Circuit affirmed the court’s decision, noting that it “would take considerable time and would, inevitably, lead to an entire new round of legal challenges regarding the details of the protocols for constitutionally conducting an execution by firing squad.”

“Arthur’s own nine-year history of litigation well proves that point,” the court wrote.

In a dissenting opinion, Judge Charles Wilson wrote that Alabama’s death penalty statute does allow a firing squad because it authorizes other constitutional forms of execution and the majority’s interpretation makes it virtually impossible for inmates in lethal injection states to challenge death penalty procedures.

“Taken together, these errors have jarring practical consequences; relief is now a mirage for prisoners across this circuit,” he wrote.

A spokesman for Arthur’s lead lawyer, Suhana Han, said Arthur intends to ask the U.S. Supreme Court for a stay and to review his challenge to Alabama’s lethal injection protocol.