A 75-year-old Alabama murderer set to die on Thursday is asking U.S. courts to block his execution for an eighth time, challenging a drug cocktail that left the last inmate put to death in the state coughing and wheezing for 13 minutes.
Tommy Arthur's lethal injection is scheduled for 6 p.m. CDT (7 p.m. ET) in Atmore, Alabama. He maintains his innocence after more than three decades on death row for the 1982 murder of his girlfriend's husband.
Three juries have found him guilty of shooting Troy Wicker to death as he slept. Two convictions were overturned on constitutional grounds. After his third conviction in 1991, Arthur asked the jury to sentence him to death, allowing more time with his children during prison visits and a private cell.
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He has been fighting his punishment since.
"Until I take my last breath, I'll have hope," Arthur told NBC News in an interview last week. "I don't know how to give up."
In November, the U.S. Supreme Court stayed Arthur's last scheduled execution to consider his argument that Alabama's lethal injection procedures amounted to cruel and unusual punishment.
In February, the court declined to hear Arthur's appeal.
The case focused on Alabama's use of the sedative midazolam. Examples of the drug's inability to render executions painless are increasing, Justice Sonia Sotomayor said in a dissent, writing that Arthur "has amassed significant evidence that Alabama's current lethal injection protocol will result in intolerable and needless agony."
In a new round of appeals, Arthur claims Alabama in December injected death row inmate Ronald Smith with painful execution drugs while Smith was still conscious.
Alabama "plans to do the same to Mr. Arthur," his lawyers said in an appeal to the 11th U.S. Circuit Court of Appeals.
State attorneys said medical evidence backs the protocol.
"While Arthur cherry-picks a few of these executions to seize on exaggerated accounts of movement or labored breathing, he wholly ignores the overwhelmingly majority of these executions, which by all accounts were unremarkable and proceeded smoothly," the state said in court filings this week.
No physical evidence links Arthur to the murder, and Alabama has refused to allow DNA testing of a wig worn by the killer, his lawyers also have noted.
Arthur would be the 12th person executed this year in the United States and the first in Alabama, the Death Penalty Information Center said.
(Reporting by David Beasley in Atlanta; Editing by Letitia Stein and Lisa Shumaker)