MONTGOMERY, Ala. – The man derisively called the "Houdini" of death row by victims' advocates is asking the courts to halt his execution for an eighth time, saying Alabama's execution method won't properly sedate him before he's injected with drugs to stop his heart and lungs.
Tommy Arthur, 75, is scheduled to be put to death by lethal injection at 6 p.m. CDT Thursday for the 1982 murder-for-hire slaying of Troy Wicker. The court filing centering on the state's execution drugs was part of an expected flurry of last-minute court challenges.
Arthur has successfully fought off seven other attempts to execute him. His case has flustered the state and victims' advocates who said it was cruel for victims' families to see decades pass between crime and punishment.
Arthur, in a telephone interview from a south Alabama prison, maintained his innocence. But he acknowledged his hopes for an eighth reprieve are diminishing.
"They are going to kill me this time just as sure as you and I are talking on this telephone, and I did not commit the crime," Arthur said. "I won't give up 'til I draw my last breath. I won't give up. I can't. I'm not geared that way. I don't know how to give up."
The legal saga began Feb. 1, 1982, when police, responding to a call about a break-in, found Troy Wicker shot through the eye in his bed. Arthur was already in a prison work-release program for the 1977 slaying of his sister-in-law, a crime he admits to committing — though he says he meant to fire the shot over her head to scare her.
Wicker's wife, Judy, initially told police she came home and was raped by a black man who shot and killed her husband. After her conviction, she changed her story and testified that she had discussed killing her husband with Arthur, who wore a wig and painted his face in an attempt to look like a black man.
He was convicted in 1983, but that conviction was overturned. While awaiting retrial, he escaped from jail in 1986 by shooting a jailer in the neck with a pistol. He remained a fugitive for more than a month. A second conviction followed and also was overturned, but a third conviction stuck.
At each trial, Arthur — initially to the surprise of his lawyers — asked jurors to give him the death penalty. The decision was strategic, he said, to open up more appellate review.
The state set execution dates for Arthur in 2001, 2003, 2007, 2008, 2012, 2014 and 2016. All were delayed as a pro bono legal team fought his convictions.
"He's a Houdini," said Janette Grantham, director of the Victims of Crime and Leniency. "He always finds a way to escape."
The many delays have been painful for Troy Wicker's family, Grantham said, including one of his sisters, who died of cancer soon after Arthur's last reprieve.
"I consider that he killed her, too, because she just fought so hard to get justice for her brother, and it never came," Grantham said
Alabama Attorney General Steve Marshall called Arthur's case an "egregious example of how a convicted murderer can manipulate the legal system to avoid justice."
Arthur says that there is no physical evidence linking him to scene and that Judy Wicker changed her story as a "get out of jail free card." His defense has asked for modern DNA testing on the wig the killer wore, arguing the prosecution's case would "fall apart" if it shows someone else's DNA. Judy Wicker's rape kit cannot be found to be tested.
He has appealed to Alabama Gov. Kay Ivey to intervene.
"I'm terrified, but there's nothing I can do. I've got hope in my legal team," Arthur said.
Arthur's recent legal challenges have largely centered on the state's method of execution, including the use of the sedative midazolam to render inmates unconscious. In a Wednesday filing with the 11th Circuit Court of Appeals, his attorneys said the last inmate executed in Alabama was "awake" because he coughed for the first 13 minutes of his execution and moved slightly after two consciousness tests.
In 2016, Arthur was minutes from being executed when the U.S. Supreme Court gave him an unexpected reprieve.
"We were fixing to go into the room and they were going to put the needle in my arm," he said.
Back then, he asked to put a picture of his four children on the back of his chaplain's Bible so he could look up at them as he died. The request was denied. They are not expected to witness his execution Thursday, Arthur said.
"I would like to publicly apologize to my children, all of them," he said. "I want to apologize for not being the father that I should have been and could have been. I failed as a father."