Indiana judge stays federal execution as death penalty fight proceeds in court

An Indiana federal inmate who was scheduled to be put to death this week received a stay of the death penalty days before his execution date.

A Dec. 5 order from Indiana Southern District Judge J.P. Hanlon stopped Monday’s scheduled execution of Daniel Lewis Lee, a 46-year-old man incarcerated at the federal prison in Terre Haute for an Arkansas murder conviction.

Lee’s Dec. 9 execution date had been set in July, when Attorney General William Barr announced the Department of Justice would once again proceed with executions of federal inmates. He’s also a plaintiff in a case out of the Washington, D.C., District Court that halted the DOJ’s plans to resume the federal death penalty.

In his case in Indiana federal court, Lee argued his rights under Brady v. Maryland and Napue v. Illinois were violated when the government allegedly withheld exculpatory evidence and misled the jury during his penalty phase.

After Lee and his co-defendant, Chevie Kehoe, were convicted of murder and racketeering, the two proceeded to separate penalty phases. Kehoe, who has been described as the “more culpable of the two,” received a sentence of life without parole, but the attorney general denied a subsequent request to withdraw the death penalty as a possible sentence for Lee.

The jury returned a verdict of death against Lee in May 1999.

Lee’s attempts at sentencing relief have unsuccessfully proceeded through the Arkansas federal court that convicted him, as well as through the 8^th Circuit Court of Appeals. His most recent requests for relief under 28 U.S.C. § 2255 were denied on procedural grounds, setting him up for relief in Hanlon’s court under 28 U.S.C. 2241.

Underlying his bid for a stay of execution is Lee’s involvement in the murder of Joey Wavra in Oklahoma, for which he received a robbery conviction. Hanlon said the government relied on the Wavra murder to help secure a death sentence.

On his Brady claim, Lee alleges the government withheld from evidence a fee application showing that the judge in the Wavra case did not find probable cause to support a murder charge against Lee. And on the Napue claim, he said the government misled the penalty-phase jury when it told the jurors Lee was “legally” responsible for Wavra’s murder, and that the plea agreement that led to his robbery conviction was a “gift” from the prosecutor.

“Some elements of Mr. Lee’s Brady and Napue claims are readily met while others are not as clear,” Hanlon wrote in the Dec. 5 order staying the execution. “But at this juncture, Mr. Lee’s obligation is not to conclusively prove-up those claims. It is to show a significant possibility that he can do so.”

After finding that relief under Section 2241 was available to Lee via the Savings Clause, the judge said Lee established that significant possibility.

“The evidence presented thus far demonstrates a significant possibility that Mr. Lee may be able to show that the United States knew that the robbery plea was offered to Mr. Lee after an Oklahoma judge determined that probable cause to charge Mr. Lee with murder did not exist,” Hanlon wrote as to the Brady claim.

Similarly on the Napue claim, the judge said Lee may be able to show that the government “knew or should have known the arguments and statements made at the penalty phase regarding the circumstances surrounding Mr. Lee’s plea in the Wavra case were misleading.”

Hanlon further rejected the government’s argument that delaying Lee’s execution would harm its “strong interest” in “proceeding with its judgment,” noting the government has frequently moved for extensions of time during the 20-year proceedings.

“Similarly, the United States waited eight years — from 2011 to 2019 — to adopt a new execution protocol,” the judge wrote. “… Only after it announced the new execution protocol and scheduled Mr. Lee’s execution has the United States exhibited its current level of urgency to enforce its criminal judgments. This too undermines the nation that additional delay will cause significant harm.

“… In the end, Mr. Lee may not be able to make this showing,” Hanlon concluded. “For now, he must have a reasonable opportunity to obtain a reliable judicial determination of these challenges to the fundamental legality of his sentence.”

In November, Hanlon denied habeas relief to another Terre Haute inmate facing execution, Wesley Ira Purkey. In a footnote in his decision in Lee’s case, the judge said relief under Section 2241 was not available to Purkey.

However, Purkey’s Dec. 13 execution on those of other federal death row inmates were stayed by the D.C. District Court’s ruling last month.

The Department of Justice appealed the D.C. ruling to the United States Supreme Court, but the justices denied the request to reverse the lower court.