Missouri fights stay of execution

KANSAS CITY, Mo., Oct. 19 (UPI) -- The state of Missouri is fighting a stay of execution granted to a Kansas City man scheduled to be executed Wednesday for a 1989 murder, authorities said.

After a federal judge granted Roderick Nunley's request for a stay of execution, the Missouri attorney general's office asked the 8th U.S. Circuit Court of Appeals in St. Louis within hours to vacate the order, The Kansas City (Mo.) Star reported Monday.

Nunley was set to be executed at 12:01 a.m. Wednesday for the kidnapping, rape and murder of Kansas City teenager Ann Harrison, the newspaper said.

The stay order was issued after lawyers for Nunley argued he was entitled to a new sentencing hearing because a judge, not a jury, heard the evidence to determine if he should receive a death sentence.

Missouri law at the time did not provide that right, but the U.S. Supreme Court ruled in 2002 jurors must weigh evidence to determine if a defendant should be sentenced to death.

The following year, the Missouri Supreme Court ruled that the U.S. Supreme Court decision could be applied retroactively in some cases.

Whether that applies to Nunley must now be resolved, Chief U.S. District Judge Fernando Gaitan wrote in granting the stay request.

The Missouri attorney general's office said the stay should be lifted because Nunley could have raised the issue years ago but did not.

"There can be no reasonable argument that Nunley could not have raised the claim years ago, and fully litigated it in state and federal court without a stay," attorneys for the state argued.