OLYMPIA — Washington state has asked the U.S. Supreme Court to lift a stay of execution for Darold Ray Stenson.
Stenson, 55, has been scheduled to be executed Dec. 3 for the 1993 murders of his wife and a business partner in Clallam County. But two separate courts issued stays to the execution on Tuesday.
The 9th U.S. Circuit Court of Appeals rejected the state’s motion to lift one of those stays today, on grounds that the request is moot because of the other stay in place.
State Assistant Attorney General John Samson says the state then appealed that decision to the nation’s highest court.
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EARLIER STORY:
PORT ANGELES — A new witness in a 15-year-old double murder case prompted Clallam County Superior Court Judge Kenneth Williams to order a stay of execution for former Sequim resident Darold Stenson.
Stenson, 55, is scheduled to be executed by lethal injection Dec. 3 at the Washington State Penitentiary in Walla Walla for murdering his wife and business partner in 1993 on his exotic bird farm southeast of Sequim.
Williams was one of two judges to order a stay on Tuesday.
In a separate court ruling in Yakima, U.S. District Judge Lonny Suko issued a stay of execution on Tuesday in a conference call with lawyers.
Stenson’s federal case lawyers asked for a temporary restraining order blocking the execution because the state revised its procedure for administering lethal injections last month without previously announcing any changes or going through a rule-making process.
Williams ordered the stay to permit additional DNA testing, reversing his original ruling on Friday against the stay because a new witness came forth after Friday’s hearing, saying that he had been told Stenson was framed.
On Friday, Williams said his court didn’t have the authority to grant the stay of execution requested by Stenson’s Seattle lawyers Robert Gombiner and Sheryl McCloud.
On Tuesday, he ordered a review of DNA testing within 60 days, even though he said Stenson’s defense “presents no evidence at this juncture which would justify a new trial, or even raise a reasonable doubt about his guilt.”
A DNA review hearing has been set for Jan. 28 in Clallam County Superior Court.
Clallam County Prosecuting Attorney Deb Kelly said her office will seek a review of the Clallam County decision in the state Supreme Court.
“We’ll have a motion filed in the next day or two,” Kelly said.
“I was disappointed by his ruling, particularly since he stated he felt that most likely all testing was going to do was to confirm Stenson’s guilt,” she added.
According to the 32-page court transcript, Williams said: “Further DNA testing will, in my opinion, be more likely to inculpate the Defendant than exonerate him.”
Said McCloud: “I thought it was a carefully-considered detailed ruling.
“He had ruled against us Friday, and new evidence walked into the prosecutor’s office Friday evening that potentially changes everything.
“The judge did the right thing and carefully considered new evidence and allowed DNA testing.”
What changed?
After Friday’s court ruling in Port Angeles, a man went to his probation officer and said he had information about the crime which he felt morally compelled to disclose, according to Tuesday’s court transcript.
Kelly provided the transcript to the Peninsula Daily News and asked to withhold the names of the new witness and potential suspects.
The transcript gives this account:
The new witness said he had a conversation with another man about eight years ago while both of them were high on drugs.
The second man broke down crying, and told the witness of a plan by others to commit the murders of Denise Stenson, who was 28, and Frank Hoerner, 33, on March 25, 1993 so that they could steal Stenson’s valuable swords and antiques.
The second man told the witness that Stenson was not guilty and had been framed.
The witness said the second man named six people, including himself, who committed the crime.
The witness said he was told the group had been doing large burglaries at the time and supposedly, planted evidence at the scene that would point to Stenson.
The witness said he didn’t know if any of what he was told was true or not, but felt compelled to disclose what he had been told.
On Saturday, detectives interviewed one of the people in the group of six that the new witness said may have committed the crime.
He denied knowledge of any plot, but he said he believed there was a chance two other others could have been involved.
Each of the people named by the witness have histories, and would have DNA in the state database, according to the court transcript.
A second man was interviewed Monday. He said he never met Stenson but moved into the house about two years after the murders, according to the transcripts.
A third person was interviewed at the same time Monday. The woman said she had no knowledge of any frame or cover-up involving the murders.
Said Williams: “What has changed since Friday is that there are more named and known individuals to speculate about, and it is still speculation,” the transcript read.
DNA testing capabilities have changed since Stenson was convicted in 1994, Williams said.
“What has changed since Friday is that there are now some persons of potential interest. There were none before,” the transcript read.
“Is that potential interest credible? Probably not. But that’s not the test that I believe the court must use in considering a DNA discovery request.”
Depends on appeals
Whether or not the execution will happen on Dec. 3 depends on appeals.
Meanwhile, state Attorney General Rob McKenna told The Associated Press that his office is asking an appeals court to vacate Suko’s order, and allow the execution to proceed as scheduled on Dec. 3.
Stenson’s lawyers argued in federal court that their client has Type 2 diabetes with veins that are difficult to access, making it more likely that he would suffer pain that constitutes unlawful cruel and unusual punishment.
The federal court ruling preceded the ruling in Clallam County Superior Court.
McCloud said she didn’t think the Yakima ruling impacted the stay of execution ordered in Port Angeles.
“That’s a separate issue,” McCloud said.
Not surprised
Thurston County Deputy Prosecutor David Bruneau, who prosecuted the case in Clallam County, told The Seattle Times he’s not surprised by the stay.
“Stays of execution are not at all uncommon in death penalty litigation,” Bruneau told the Times.
“I know that the good people in the attorney general’s office are prepared for just about anything and will take care of it. I believe the execution will happen.”
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Reporter Rob Ollikainen can be reached at 360-417-3537 or at rob.ollikainen@peninsuladailynews.com
