Executed, November 15, 2001

The Honorable Governor Rick Perry
Office of the General Counsel
1100 San Jacinto, Suite 412
Austin, Texas 78701

Re: Emerson Rudd

Dear Governor Perry:

On behalf of the American Civil Liberties Union, we respectfully ask you to grant a 30-day reprieve of the execution of Emerson Rudd, currently scheduled for November 15, 2001.

Mr. Rudd's attorney, David Schulman, has represented Mr. Rudd since the federal district court appointed him as counsel in 1986 pursuant to 21 U.S.C. § 848(q), which states, in part:

"Unless replaced by similarly qualified counsel . . . , each attorney so appointed shall represent the defendant through every subsequent stage of available judicial proceedings, including . . . appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant."

21 U.S.C. § 848 (q)(8).

Mr. Schulman wishes to fulfill his obligations in accordance with the statute and assist Mr. Rudd through every stage of judicial proceedings. Mr. Schulman, however, was unable to file a clemency petition on Mr. Rudd's behalf simply because he did not have the funds to do so, and the deadline for filing the petition has now passed.

The American Civil Liberties Union urges the 30-day stay because the United States District Court for the Northern District of Texas and the United States Court of Appeals for the Fifth Circuit are currently deciding an important issue that will have a direct impact on this case. The courts are considering whether 21 U.S.C. § 848 (q) mandates payment of funds for services appointed counsel provides to state death row inmates who wish to pursue clemency.

If Mr. Rudd is afforded the 30-day stay it would allow for a more accurate determination of his rights, and the minimal delay would not substantially burden the state. Because of the importance of the District Court and Fifth Circuit determinations, it is imperative to wait for those decisions before proceeding with the scheduled execution. The decisions may require that the federal district court provide funds so that Mr. Schulman can fulfill his obligations and file the clemency petition.

It is likely that the District Court and Fifth Circuit will follow other recent federal court decisions and find that funds for filing clemency petitions are mandated by 21 U.S.C. § 848(q). Recently, the Eighth Circuit has held that the plain language of the statute mandates that a federal district court must appoint and compensate counsel to file a federal habeas corpus petition and a subsequent state clemency application on behalf of indigent, state death-sentenced inmates. All but two of the district courts that have faced the question have sided with the Eighth Circuit, and one of those district court cases is now before the Fifth Circuit for review.

If Mr. Rudd is afforded the 30-day stay of execution it will allow the courts to settle the important issue of whether the federal district court should provide funds to indigent, death row inmates so that their attorneys can prepare a clemency petition. If the courts rule favorably, then Mr. Schulman can fulfill his obligation and preserve the continuity of representation that has existed since 1996.

Sincerely,

Diann Rust-Tierney
ACLU Capital Punishment Project

William Harrell
ACLU of Texas

Bart T. East*
Pro Bono Counsel
Squire, Sanders & Dempsey L.L.P.

*Admittance in the District of Columbia Bar pending