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Originally published Tuesday, November 25, 2008 at 6:50 PM

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Judges stay Dec. 3 execution of Wash. inmate

Federal and state judges have indefinitely delayed the scheduled Dec. 3 execution of Darold Stenson for the 1993 shooting deaths of his wife and a business partner in Clallam County.

Associated Press Writer

YAKIMA, Wash. —

Federal and state judges have indefinitely delayed the scheduled Dec. 3 execution of Darold Stenson for the 1993 shooting deaths of his wife and a business partner in Clallam County.

The separate stays were issued Tuesday by judges in federal court in Yakima and in Clallam County Superior Court.

U.S. District Judge Lonny Suko issued his order in a conference call with lawyers. State Attorney General Rob McKenna said his office was asking an appeals court to vacate Suko's order and allow the execution to proceed as scheduled.

Stenson's lawyers this week asked Suko for a temporary restraining order blocking the execution on the grounds that the state last month revised its procedure for administering lethal injections, without previously announcing any changes or going through a rule-making process.

Furthermore, they argued that their client has Type 2 diabetes with veins that are difficult to access, making it more likely that he would suffer pain that constitutes unlawful cruel and unusual punishment.

Without the judge's intervention, they argued, Stenson "will die at the hands of an unreviewed, untested, never-before-implemented lethal injection policy which is likely to cause him severe pain."

McKenna argued that Stenson is "using every means at his disposal to avoid execution."

"Every other avenue of appeal has been exhausted and even though the U.S. Supreme Court has already ruled on the question of lethal injection's constitutionality, he's making this argument anyway in a last-ditch effort to avoid execution," McKenna said.

The other stay was issued by Judge Kenneth Williams in Clallam County Superior Court, according to Assistant Attorney General John Samson, one of the attorneys handling the case.

Samson said the judge reversed an earlier decision he made regarding DNA testing in the case. Williams had initially denied DNA testing requested by Stenson's attorneys. But on Tuesday, the judge decided to allow the testing and granted the stay.

Clallam County Prosecuting Attorney Deborah Kelly said her office will be seeking an emergency review of that decision with the state Supreme Court.

Samson said that if the 9th U.S. Circuit Court of Appeals rejects the attorney general's request to vacate the federal stay, his office will go to the state Supreme Court as well.

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Eight men sit on Washington's Death Row, but Stenson would be the first inmate put to death since 2001 if none of his pending appeals is granted.

Stenson, 55, was convicted of aggravated murder for the shooting deaths of his wife, Denise Stenson, and business partner, Frank Hoerner, while his three young children slept nearby in his Clallam County farmhouse.

When he called authorities to report the deaths, he suggested that Hoerner had killed Denise Stenson and then shot himself in another room. Prosecutors have said Stenson, struggling financially and in dire business straits, shot the two in order to collect $400,000 in life insurance.

Sheryl Gordon McCloud, Stenson's attorney, said she was pleased with the decisions. One, in particular, allows DNA testing of items at the crime scene, such as the gun, that might potentially have been associated with the real murderer, she said.

"DNA testing, at the time of trial, was not of a quality that DNA is now," she said. "But science moves forward."

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AP Writers Rachel La Corte in Olympia and Gene Johnson in Seattle contributed to this report.

Copyright © 2008 The Seattle Times Company

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