ATLANTA (AP) — With about eight hours to spare before a man convicted of killing a convenience store clerk was set to be put to death Wednesday, the state’s highest court stepped in and temporarily halted the scheduled 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 “it appears that the pending execution order may be void.”
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 asked the trial court to order DNA testing on evidence in the case last year 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 was filed Oct. 16 in Thomas County Superior Court. That order set a seven-day window for the execution beginning at noon Wednesday and ending at noon on Nov. 6. State officials scheduled the execution for Wednesday at 7 p.m.
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.
The court’s order says the execution will remain on hold until the court rules otherwise, though it notes the stay may be irrelevant if the execution order is void.
Cromartie borrowed a handgun from his cousin on April 7, 1994, entered the Madison Street Deli that night and shot clerk Dan Wilson in the face, seriously injuring him, a Georgia Supreme Court summary of Cromartie’s case says.
Wilson couldn’t describe the person who shot him, and surveillance camera footage wasn’t clear enough to conclusively identify the shooter.
Days later, on April 10, Cromartie and Corey Clark asked Thaddeus Lucas to drive them to a different store to steal beer, the summary says. Lucas parked and the other two entered the Junior Food Store.
Cromartie shot Slysz twice in the head, the summary says. Unable to open the cash register, Cromartie and Clark fled after Cromartie grabbed two 12-packs of beer.
In both cases, Cromartie told others he had shot the clerks, the summary says.
Lucas and Clark testified against Cromartie at the September 1997 trial that ended with his death sentence. Lucas and Clark each pleaded guilty to lesser charges, served prison time and were released.
In the appeal application that was pending when the execution order was filed, Cromartie’s lawyers sought DNA testing on evidence including: shell casings from both shootings, clothing found near the first shooting site, a package of cigarettes found near Slysz’s body, and clothing samples from Slysz and from other people they say are potential shooters.
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 attorneys have also filed a complaint in federal court challenging the constitutionality of the Georgia law governing post-conviction DNA testing and the way the state’s courts have applied it. That filing also asked for an order to allow DNA testing. A federal judge dismissed the complaint, and an appeal is pending before the 11th U.S. Circuit Court of Appeals.
Cromartie’s lawyers have also said his trial lawyers and first set of post-conviction attorneys were ineffective and failed to present evidence of his childhood trauma and 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 had asked the state Supreme Court to consider their arguments and to halt the execution.