Law: Thirty-One Minutes from Death

Are legal procedures in capital cases lethally arbitrary?

James David ("Cowboy") Autry, 29, spent much of last Tuesday talking calmly with a Presbyterian minister and a Roman Catholic priest at the Huntsville, Texas, prison known as The Walls. At 6:30 p.m. he was served a final meal; he had chosen an unusually mundane one of hamburger with mustard, French fries, iced tea, water, and nothing else. His court-appointed attorney, Charles Carver, arrived, and they talked of his legal prospects. But both knew there was little hope. The day before, the U.S. Supreme Court had turned down his request for a stay. The time for his execution neared. "He was prepared," recalls Carver.

Just before 11, Autry took the ten paces from his cell to a small, green-painted room and climbed voluntarily onto a wheeled hospital gurney. He was to be the second man in the U.S. executed by injection, and after he was strapped down, a prison employee inserted an IV tube into each arm. A harmless saline solution began to flow, while executioners prepared to release a fatal dose of Pavulon, potassium chloride and thiopental sodium. He lay there waiting to die at the appointed time of 12:01.

Throughout that same day, lawyers from the American Civil Liberties Union had been frantically busy. Led by Stefan Presser in Marshall, Texas, the attorneys, who were newly involved in the case, saw their petitions turned down by two state courts, then by a federal district court. Presser asked the Fifth Circuit Court of Appeals to consider his motion for a stay. With no time for the parties to get together, the hearing was convened through a 68-minute conference call, with three appeals judges listening from Louisiana, Mississippi and Texas while Presser and Assistant State Attorney General Leslie Benitez talked from Marshall. The appeals court seemed mindful of the Supreme Court's growing desire to cut short apparently groundless last-minute challenges to death sentences. Shortly after 10:30 p.m. Texas time, the court rejected the petition in an eight-page opinion.

At the U.S. Supreme Court, Justice Byron White, who oversees the Fifth Circuit, was standing by for a possible new plea in the Autry case. While the circuit court's opinion was being read into a Supreme Court tape recorder, Alvin Bronstein, executive director of the A.C.L.U.'s National Prison Project, was sitting in the lobby writing out in longhand an application to stay the execution. As he wrote, the lights flickered on and off, a consequence of the drain on the building's electrical system caused by the refrigeration of historic documents in glass cases in the lobby. Only 51 minutes before the scheduled execution, a clerk handed Bronstein's two-page petition to Justice White. Twenty minutes later he issued an order for a stay. The news was flashed to Huntsville, but officials there waited until almost midnight before telling Autry about the reprieve. He was not unplugged from the IVs until 12:40. Still showing no visible emotion, he then got off the gurney and walked out of the death chamber.