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Stay of execution signals desire to debate chair's fate

Published Sep. 26, 2005

In another sign that justices want to debate the constitutionality of the electric chair, the U.S. Supreme Court has stayed the execution of an Alabama man hours before he was to die.

The court granted a stay of execution Thursday night to Robert Lee Tarver Jr., who had eaten his last meal and given away his possessions, and was to die just after midnight for the 1984 slaying of a rural store owner.

The high court did not specify the reason for the stay, but Tarver's appeal _ denied Thursday by the Alabama Court of Criminal Appeals and the Alabama Supreme Court _ questioned the constitutionality of the electric chair.

It is the second time in less than four months that the justices have halted an electrocution.

Last October, the high court agreed to review a similar Florida claim in the case of convicted killer Anthony Bryan. The court had not granted review of the chair in more than 100 years.

But the justices backed off when the Florida Legislature switched its primary execution method to lethal injection.

Martin McClain, a New York lawyer who led the challenge to Florida's chair, said the justices' action in the Alabama case is a sign that electrocution is a death penalty method whose days are numbered.

"It certainly would seem that their concern wasn't limited to Florida," McClain said. "It seems that the court is concerned about the electric chair itself."

Only Alabama, Georgia and Nebraska still use electrocution as the sole means of execution.

Attorneys for Tarver, 52, argued the chair is akin to torture that leaves inmates' bodies burned and mutilated.

"Alabama death row prisoners executed by electrocution are consistently burned excessively, occasionally electrocuted more than once due to human or mechanical failures and are always at risk of unnecessary pain and suffering," the appeal said.

In response, state Prison Commissioner Mike Haley said death in the electric chair is "almost painless and immediate."

The court's order postponed Tarver's execution until the justices decide whether to grant full review to his appeal. There was no indication when that decision would be announced.

If the court rejects Tarver's arguments, the state would be free to set a new execution date.

"It is my contention that the electric chair as a means of execution is constitutional," Gov. Don Siegelman said Friday. "My concern is not whether the sentence is carried out by lethal injection or electrocution, but that it is carried out in a timely manner."

Siegelman has said he wants lethal injection legalized in Alabama but only as a fallback if the courts outlaw the electric chair. The Legislature is considering two bills that would make injection the state's primary form of execution.

Florida has used the chair since 1924. In the 1990s, three electrocutions were marked by smoke, flames or blood.

Alabama has used the electric chair since 1927. During John Evans' execution in 1983 _ one of two botched electrocutions cited in the appeal _ the electrode on his leg spurted sparks and flames, then burst from the strap and caught fire. Smoke and sparks came out from under Evans' hood. After the first two jolts of electricity, doctors found a heartbeat, and it was only after the third that he was declared dead.

Tarver was convicted in the robbery and murder of Hugh Kite, 63, outside Kite's bait shop and grocery in rural Russell County near the Georgia line.

_ Times staff writer Sydney P. Freedberg contributed to this story.