ATLANTA -- The Supreme Court, by a 5-4 margin, granted a stay of execution to Alpha Otis Stephens Tuesday night just 10 hours before he was to die in Georgia's electric chair.
But it appeared that the execution of another condemned Georgia killer, John Eldon Smith, 53, would go on as scheduled Thursday morning.
The Supreme Court had ruled on Stephens' case five times previously, the last time on June 22, when it upheld his death sentence by a 7-2 vote.
The court's one-paragraph order gave no reason for the stay.
But a nine-page dissent written by Justice Lewis Powell, who was joined by Chief Justice Warren Burger and Justices William Rehnquist and Sandra Day O'Connor, said the majority decided that the 11th Circuit Court of Appeals should rule on similar issues in another Georgia death penalty case it is considering before Stephens is allowed to die.
The 11th circuit court denied Stephens' plea for a stay earlier Tuesday.
Powell wrote that there was no question of Stephens' guilt in the 'brutal, execution-style murder.'
'This is a contest over the application of capital punishment -- a punishment repeatedly declared to be constitutional by this court.'
Powell said that in the nearly nine years that Stephens' case has been in the courts, 'there has been no holding that the death sentence was not appropriate in this case. Indeed, if on the facts here it was not appropriate, it is not easy to think of a case in which it would be so viewed.'
He criticized the 'last minute' appeals 'resulting in additional delay of the imposition of a sentence imposed almost a decade ago.'
Stephens, 38, convicted of the 1974 murder of a Macon building contractor, was to have died at 8 a.m. Wednesday.
The Georgia Pardon and Paroles Board denied pleas for clemency by both Smith and Stephens Tuesday. For Smith, it was his last hope, since all court appeals apparently have been exhausted. His attorney refused to talk with reporters.
Parole Board Chairman Mobley Howell said 'this board should be concerned with the accuracy of the conviction and the appropriateness' of Stephens' sentence and not whether he had inadequate counsel, which was a ground for his appeal to the 11th Circuit.
'There were no issues which merit consideration by this board' in Stephens' petition, Howell said.
The case of Smith, Howell said, 'is clear. There can be no doubt John Eldon Smith was a willing and active participant in the crime of murder.'
Attorneys for Stephens filed for an emergency stay with U.S. Supreme Court Justice Lewis F. Powell, who late Tuesday turned the issue over to the entire court for consideration.
Both Smith and Stephens, who is black, went under 'death watch' at the Georgia Diagnostic and Treatment Center near Jackson, housed in isolation cells about 30 feet from the white-painted electric chair.
Prisoners under death watch get special meals, a television and reading material, limited use of a telephone and extended visiting privileges with their family, attorneys and clergymen.
Stephens had requested only coffee for his last meal - breakfast - at 6 a.m.
Stephens was convicted in Bleckley County for the pistol slaying of Roy Asbell, who surprised two burglars at his son's home in Twiggs County and was abducted.
Defense attorneys claimed racial factors influenced his sentence, saying blacks were disproportionately sentenced to die in crimes involving white victims, but a three-judge panel of the appeals court last week rejected that argument.
Smith was convicted of killing Ronald and Juanita Akins in 1974. Trial testimony indicated Smith's wife talked him into adopting an Italian name -- Anthony Isalldo Machetti -- and killing the Macon, Ga., couple in hopes of getting a job as a 'Mafia hit man.'
Prison officials said they already have tested Georgia's white electric chair, which was last used Oct. 16, 1964, to execute Bernard Dye. The execution chamber has three buttons, but only one is actually connected to the electric chair so the volunteer executioners never know who triggers the lethal jolts.
