New Trial Ordered For Condemned, Obese Killer Court Also Rules That Lethal Injection Law Can Be Applied Retroactively

State lawyers said Friday a federal appeals court ruling handing condemned killer Mitchell Rupe a possible Death Row reprieve wasn’t a complete defeat for the state.

In its 3-0 ruling Thursday, the 9th U.S. Circuit Court of Appeals found that the state improperly excluded evidence in Rupe’s penalty trial for the 1981 slayings of two Olympia bank tellers, and ordered a new trial.

But in a piece of good news for the state, the court also settled an issue that for seven years vexed the Legislature and delayed until this year passage of a law replacing hanging with lethal injection as the means of execution in Washington.

The court ruled that the 1996 Legislature’s law making lethal injection the primary method of execution does, in fact, apply to inmates who were condemned to die before the law was passed.

Had the court ruled otherwise, Rupe could have refused to choose lethal injection over hanging and continued to pursue his longstanding argument that hanging would be “cruel and unusual” because he weighs 400 pounds and hanging would amount to beheading. A lower court last year ruled in Rupe’s favor on that issue.

But the appeals court said the issue was moot because Washington law has been changed to specify that a condemned prisoner who declines to choose a method of execution will die by lethal injection.

The appeals court found that “the law does apply retroactively. That’s what we advised the Legislature would happen. It looks as though our advice was good advice,” said Fred Olson, a spokeswoman for Attorney General Christine Gregoire.

Gregoire added that the appeals court ruling will “help avoid the predictable, time-consuming appeals we faced with the old death-by-hanging law.”

She said the state hasn’t yet decided to appeal the court’s ruling that Rupe should have a new penalty trial in which he would argue against execution.

The court upheld a ruling by U.S. District Judge Thomas Zilly that Rupe should get a second penalty trial because jurors were not told that a prosecution witness failed a lie-detector test.

Zilly had ruled that the exclusion of the polygraph results violated Rupe’s right to present all favorable and relevant evidence to his penalty-phase jury.

Jurors in the penalty phase of a Washington aggravated murder trial decide between a death sentence and life in prison without parole. Under Washington law, a life sentence is required if a single juror votes against death.

Rupe, then 27, was convicted of fatally shooting two tellers during a 1981 robbery at an Olympia bank. His first death sentence was overturned by the Washington Supreme Court, but he was sentenced to death again in a retrial.