ATLANTA, GA – With about eight hours to spare before a man convicted of killing a convenience store clerk was to be put to death Wednesday, Georgia's highest court stepped in and temporarily halted the execution.
Ray Jefferson Cromartie, 52, was to receive a lethal injection at 7 p.m. Wednesday at the state prison in Jackson. But the Georgia Supreme Court issued a stay of execution, saying the execution order "may be void."
In a legal filing Wednesday, lawyers for the state conceded the order is void. They urged the court to rule quickly on an outstanding appeal application filed by Cromartie's lawyers, as they plan to seek a new execution warrant.
Cromartie was convicted of malice murder and sentenced to death for the April 1994 killing of 50-year-old Richard Slysz in Thomasville, just inside Georgia's southern border. The state says Cromartie also shot and seriously injured another convenience store clerk a few days earlier.
Cromartie insists he didn't shoot either clerk. His attorneys last year asked the trial court to order DNA testing on evidence and requested a new trial. Southern Judicial Circuit Senior Judge Frank Horkan rejected those requests last month, and Cromartie's lawyers on Oct. 11 asked the state Supreme Court for permission to appeal that ruling.
While that request was pending, an execution order filed Oct. 16 in Thomas County Superior Court set a seven-day window for the execution beginning at noon Wednesday and ending at noon Nov. 6. State officials scheduled the execution for 7 p.m. Wednesday.
The high court's order Wednesday says the execution order may be void because the application for appeal filed by Cromartie's attorneys was pending and the case was under the jurisdiction of the state Supreme Court at the time. The order instructs the lawyers for Cromartie and the state to file briefs on that issue by 8 a.m. Monday.
But lawyers for the state said in a filing Wednesday afternoon that the briefs and delay until Monday aren't necessary as they concede the order is void. They said they plan to seek a new execution warrant with an execution window from Nov. 13 to Nov. 20.
Shawn Nolan, one of Cromartie's lawyers, said in an emailed statement that they "remain hopeful that the courts will ensure that DNA testing is completed in Mr. Cromartie's case before an execution is carried out."
Cromartie's attorneys have released two letters from Slysz's daughter, Elizabeth Legette, supporting the DNA testing.
In the appeal application that was pending when the execution order was filed, Cromartie's lawyers sought DNA testing on evidence from the shootings.
The DNA testing could prove Cromartie wasn't the shooter, his lawyers argue. If he wasn't the shooter, he couldn't be guilty of malice murder, the conviction for which he was sentenced to death, they've written in court filings.
In rejecting the request for DNA testing and a new trial last month, Horkan found that it's unlikely the DNA testing would lead to a different verdict. The judge also said Cromartie waited too long to ask for the testing and failed to show that he wasn't just trying to delay his execution. The Georgia Supreme Court ultimately declined to hear an appeal of that ruling.
Cromartie's lawyers have said his trial lawyers and first set of post-conviction attorneys were ineffective and failed to present evidence of his childhood abuse and resulting mental health issues during the sentencing phase of his trial. A judge denied that petition, saying it was procedurally barred because Cromartie had failed to raise those arguments in earlier petitions. Cromartie's lawyers have asked the state Supreme Court to consider their arguments and to halt the execution. The state lawyers on Wednesday asked the high court to expedite that ruling.
Cromartie's attorneys had also challenged the constitutionality of the Georgia law governing post-conviction DNA testing and the way the state's courts have applied it. A judge has dismissed that complaint, and the 11th U.S. Circuit Court of Appeals affirmed that dismissal.