There is still a clemency hearing for confessed child murderer Kevin Ray Underwood on Monday.
A federal judge on Sunday refused to block the Oklahoma Pardon and Parole Board from holding the hearing until it has five members again.
Underwood is scheduled to be executed by lethal injection at the Oklahoma State Penitentiary in McAlester on December 19 for the murder of a 10-year-old girl.
Underwood suffocated Jamie Rose Bolin in his Purcell apartment on April 12, 2006. He admitted that he had been planning to kill someone for months to fulfill his sexual and cannibalistic fantasies. He described Jamie, a neighbour, as a ‘convenient’ victim.
The FBI found the girl’s nearly decapitated body in a plastic bathtub in his bedroom closet two days after she went missing. He had either raped her as she was dying or tried to have sex with the corpse, according to evidence presented at his 2008 trial. He had not digested any of the body.
More: Judge sentences Underwood to death
He was 26 at the time. His lawyers argue he deserves mercy because he is mentally ill. An expert on autism spectrum disorders will speak on his behalf via video on Monday.
Underwood, now 44, filed a complaint in federal court in Oklahoma City after a board shake-up left only three members remaining. He asked U.S. District Judge Charles Goodwin to suspend both the clemency hearing and his execution.
His lawyers argued that he has the right under the Oklahoma Constitution to have five members hear his clemency petition. They also alleged that his due process rights under the U.S. Constitution were violated.
Gov. Kevin Stitt appointed Tulsa attorney Susan H. Stava to the board Thursday. She plans to participate in the hearing.
The judge denied the stay request in a 13-page order Sunday morning. Goodwin pointed out that the 10th U.S. Circuit Court of Appeals in 1998 rejected an Oklahoma death row inmate’s challenge during a clemency hearing to a 2-2 deadlock. The judge wrote that the appeals court “found that the Oklahoma Constitution ‘clearly contemplates such a tie vote.'”
The clemency hearing was called off after acting chairman H. Calvin Prince III resigned on Nov. 29 amid a criminal investigation. The chairman of the board, Ed Konieczny, resigned on November 6.
The clemency hearing was moved from Wednesday to Monday morning after Attorney General Gentner Drummond complained about the cancellation.
The board can only recommend leniency. Stitt will make the final decision if so. The governor cannot act if the board votes against Underwood.
This article originally appeared on Oklahoman: OK Pardon and Parole Board to move forward with clemency hearing Monday
