The state of Alabama will not oppose death row inmate William Kuenzel’s request for a stay of execution pending appeal.

On Dec. 23, the state Supreme Court ordered Kuenzel put to death on March 19, while he was still waiting for a hearing before the state Court of Criminal Appeals.

Oral arguments before the state appeals court were eventually scheduled for April 7, almost three weeks after his scheduled execution date.

In a court document dated Jan. 27, Kuenzel’s attorneys point out “as of the date of this motion, (his) execution remains scheduled for March 19. The state’s motion to set an execution date seems to have been made as a matter of routine, despite the fact than an appeal was pending.

"Now the oral argument has been scheduled, the state has advised undersigned counsel that it does not oppose Keunzel’s request for a stay of execution.”

Rather than making complex legal arguments commonly seen in death penalty appeals, Kuenzel’s lawyers are arguing that he is, in fact, innocent, and that evidence to this effect was not presented at trial.

In the document filed Tuesday, his lawyers said, “To execute Kuenzel when his claims of actual innocence and unconstitutional prosecution are in active litigation in the courts of this state is itself unconstitutional under the Eighth and 14th amendments of the U.S. Constitution … Ultimately, Kuenzel should not be executed without an evidentiary hearing because the ‘execution of a legally and factually innocent person (is)…a constitutionally intolerable event.’”

During his appeal, Kuenzel’s lawyers have argued that it was actually his roommate. Harvey Venn, who committed the murder of convenience store clerk Linda Offord during a botched robbery in Sylacauga 1987. Venn pleaded guilty to a lesser charge and testified against Kuenzel at his initial trial. The appeals team has called into question other witness statements as well.

An appeal for new evidence to be heard was denied by the U.S. 11th Circuit Court last fall.

Another issue

Although Kuenzel’s appeal at this point is based on his claim of innocence, another issue, specifically the drug cocktail that is used to carry out an execution, is referred to in a footnote to the document filed Tuesday.

“It cannot be forgotten that the district court for the middle district of Alabama recently confirmed that a stay of execution should be should remain in force until that court and the 11th Circuit (U.S. Court) have ‘conducted additional proceedings, including an evidentiary hearing to resolve the issue of whether the change in drugs … constitutes a ‘significant’ change to Alabama’s lethal injection protocol.”

The footnote goes on to say, “This same district court has five other lawsuits pending that also challenge Alabama’s lethal injection protocol. As the district court noted, ‘this litigation is not happening in a vacuum…” The U.S. Supreme Court agreed to hear a challenge to Oklahoma’s protocol, which is similar to Alabama’s.

“Although Kuenzel has not yet elected to file a parallel lawsuit, he urges that prudence and caution each counsel for his not being executed while those claims remain the subject of active litigation.”