Texas is set to move forward with the execution of an inmate Wednesday, its first since a five-month delay due to the coronavirus pandemic.
Billy Wardlow, 45, was convicted of capital murder after he fatally shot an 82-year-old man, Carl Cole, in 1993 during a robbery at Cole’s home.
Wardlow was 18 at the time. The minimum age a person can receive the death penalty in Texas is 17 years old.
Wardlow’s attorney, Richard Burr, told ABC News Wednesday that there are three pending petitions in the Supreme Court that could possibly result in a stay of execution.
He called those petitions “the most serious and hopeful.”
One petition, which has been pending since June 10, has to do with the question of predicting future dangers, according to Burr.
In Texas, in order to be sentenced to death, a person has to be deemed someone who is likely to be dangerous in the future.
“You can scientifically know now it was impossible to predict future dangers of an 18-year-old because their brains are still not fully formed,” Burr said.
Prosecutors argued that society has long used the age of 18 as the point where it draws the line for many distinctions between childhood and adulthood, according to the Associated Press.
“Wardlow senselessly executed elderly Carl Cole to steal his truck, something that could have been taken without violence because the keys were in it,” according to a petition filed with the Supreme Court by the Texas attorney general’s office, the AP reported.
The two other petitions involve what Burr described as ineffective counsel and an incorrect waiving of another appeal in state and federal court.
Burr said he has also requested with the Texas Supreme Court to withdraw the execution order because of the risk amid the pandemic and the “huge rise of COVID-19 cases in Texas.”
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A judge moved Wardlow’s execution date from April 29 to July 8 because of the pandemic. Six executions scheduled in Texas for earlier this year were postponed by the courts because of the outbreak, according to the AP.
Texas is among the states that have seen an increase in coronavirus cases, the daily rate of positivity, hospitalizations and deaths, according to an ABC News analysis.
The Texas Board of Pardons and Paroles denied a request to delay Wardlow’s execution or commute his sentence to life in prison on Monday, Burr said.
Wardlow’s execution time is set for 6 p.m. CST, but can occur any time after that until midnight, according to Robert C. Hurst, a spokesman at the Texas Department of Criminal Justice.
Jason Clark, chief of staff at the state’s Department of Criminal Justice, told ABC News the agency can “carry out the process safely for those participating and witnessing the execution.”
Witnesses will have their temperature taken, will be provided with a mask and be spaced out, Clark said. No more than five witnesses are allowed for the inmate and victim each, a limit that predates the pandemic.
If carried out, it will be Texas’ third execution of the year. The two others took place in Jan. 15 and Feb. 6.
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