The Tribune Democrat, Johnstown, PA

November 8, 2012

Federal appeals court stops inmate's execution

Mark Scolforo & Peter Jackson
Associated Press

HARRISBURG —

A federal appeals court stopped the execution of a Pennsylvania inmate Thursday, hours before he was scheduled to be put to death for shooting to death a teenage hitchhiker nearly two decades ago.

The 3rd U.S. Circuit Court of Appeals sent the case of Hubert Lester Michael Jr. back to a district court judge for additional proceedings.

Michael had faced a 7 p.m. execution by lethal injection for the 1993 killing of 16-year-old Trista Elizabeth Eng in York County.

He would have been the first person executed in the state since 1999, the fourth in the past quarter century and the only one in the past 50 years who had not voluntarily given up on his appeals.

A statement released by his defense lawyers welcomed the decision and said their client has "compelling legal claims which have never been reviewed by any court." The attorney general's office declined to comment.

The circuit court panel directed the district court to address, among other things, whether Michael's appeal should be considered a successive petition that is subject to stricter rules, whether "extraordinary circumstances" existed and whether a district court proceeding is needed to consider the merits of Michael's claims.

Since he was sentenced to death, Michael had abandoned his appeals but later resumed a legal fight, saying he had been confined under circumstances at Graterford State Prison that worsened mental health problems. Those problems got better after he was transferred to Greene State Prison, his lawyers have argued.

In a filing Thursday, the attorney general's office said Michael is pursuing a "successive" federal appeal that is subject to more strict court rules.

"Michael's entire argument was that, since the time of his voluntary waiver, the circumstances of his confinement have improved and effected some concomitant amelioration of his spirit. He has developed relationships ... and he has changed his mind," prosecutors wrote. "Even if true, this argument is in no way similar to a complaint of error at the district court proceeding based on failure to exhaust, procedural default, or the relevant statute of limitations."

Pennsylvania has just over 200 people on death row, the fourth most of any state after California, Texas and Florida.

The lack of executions has been attributed to a number of factors and debated for years in the state's legal circles. Prosecutors claim an anti-death penalty bias on the part of appeals judges, while defense attorneys note many of the sentences have been proved to be flawed and overturned on legitimate legal grounds.

Michael pleaded guilty to murdering Eng after kidnapping her in York County. At a 1997 hearing, his former public defender testified that Michael told him how he picked up the girl hitchhiking, bound her with electrical cord stolen from her home, raped her and killed her on state game land.

He was not charged with rape because of a lack of physical evidence, though prosecutors suspected it. Michael confessed to his brother, who located her remains about a month after she disappeared and called police. She had been shot in the head and chest.

At Wednesday's pardons board hearing, the victim's mother, Suzanne Eng, set the tone for relatives and friends who made emotional pleas to keep the execution on track.

"He kidnapped her, he raped her and then he executed her," the mother said. "As she begged him not to kill her, he shot her three times."