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Execution Plan Draws Pleas for Killer, Ailing and 74

August 04, 2004|Ellen Barry | Times Staff Writer

ATLANTA — James Barney Hubbard, a 74-year-old convicted killer scheduled to be executed by the state of Alabama on Thursday, is frail, has cancer and hepatitis and is in the early stages of dementia. His attorney has appealed to the governor to commute his sentence to life in prison.

Death penalty opponents also have pleaded for compassion based on Hubbard's age, and his fellow inmates organized their own push for clemency. If the execution goes forward, he will be the oldest man to be put to death in this country in more than 60 years, said David Elliot of the National Coalition to Abolish the Death Penalty.

"This case cries out for mercy," Elliot said. "We shouldn't be executing 74-year-old men who have colon cancer. It offends our sense of decency."

Hubbard was convicted in 1977 of murdering Lillian Montgomery, who had taken him into her home after he served a 19-year prison term for murder. He has been on death row since, as his appeals have worked their way through the system.

Attorney Alan Rose, who visited Hubbard two weeks ago, said Hubbard was so sick that it had become painful for him to move and he could barely keep food down. Suffering from hepatitis A, B and C, as well as hypertension and emphysema, Hubbard was able to do little except lie in bed and read, which he does at a second-grade level, Rose said.

The Supreme Court, which has said that it was unconstitutional to execute the mentally retarded or people under the age of 16, has never ruled on the question of whether elderly people may be executed, Rose said.

"It's important to know if people as old as Mr. Hubbard is can be executed," Rose said. "We do not allow children to be executed in this country."

At Donaldson Correctional Facility, Willie Minor launched the letter-writing campaign on behalf of the man he knew as "J.B." and persuaded 17 other death row inmates to participate. But corrections officials intercepted a packet of letters meant for the governor because they violated prison mail protocol, said George Jones of the Alabama Committee to Abolish the Death Penalty.

At Hubbard's trial, police testified that he had shot Montgomery three times in the face and shoulder after a night of drinking. When arrested, he was carrying her gold-and-diamond watch and about $250 in cash and checks.

Hubbard has maintained his innocence, saying that Montgomery committed suicide.

"Everyone's really worried about his health," said the victim's son, Johnny Montgomery, 59, who described his mother as a bighearted woman who "would take in a stray dog, a stray cat." But "she never got to ask anybody for mercy," he said. "He was the judge, the jury and he was God, for three seconds."

Very few men as old as Hubbard have been executed. The oldest was most likely Joe Lee, who was 83 when he was put to death in Virginia in 1916, said William Hayes, a Florida historian. But given current trends -- an aging prison population and slow appeals process -- about 60 people now on death row may be in their 70s by the time they receive execution dates.

That raises a dilemma for states, which go to great lengths to keep sick or suicidal inmates alive until they can be executed, said Bryan Stevenson, a Montgomery, Ala., attorney who represents death row prisoners. Victims' families, he said, often "feel cheated" if prisoners die before they can be executed.

Rose said that throughout Hubbard's appeals process, "the courts have been very, very troubled" by the investigation and prosecution in the case.

When police questioned Hubbard on the morning of Montgomery's death, he was drunk. His hands shook so much he could not sign a statement, Rose said, and police gave him whiskey to steady himself. "It doesn't take an expert to know that was improper," Rose said.

Alabama's state attorney general did not return calls seeking comment.

The victim's son also faulted the delays, saying Hubbard had now spent 46 years in Alabama jails at a total cost he estimated at $4 million to $5 million.

"Why drag this thing out? We've got schools over here with kids in trailers, but we've got state-of-the art prisons," he said.

Times researcher Rennie Sloan contributed to this report.

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