A clemency hearing for admitted child killer Kevin Ray Underwood is still on for Monday.
A federal judge refused Sunday to block the Oklahoma Pardon and Parole Board from conducting the hearing until it is back up to five members.
Underwood is set to be executed by lethal injection Dec. 19 at the Oklahoma State Penitentiary in McAlester for the murder of a 10-year-old girl.
Underwood suffocated Jamie Rose Bolin on April 12, 2006, in his Purcell apartment. He confessed he had planned for months to murder someone to act upon his sexual and cannibalistic fantasies. He described Jamie, a neighbor, as a “convenient” victim.
The FBI found the girl’s nearly decapitated body in a plastic tub in his bedroom closet two days after she went missing. He had either raped her as she was dying or had tried to have sex with the corpse, according to evidence presented at his 2008 trial. He had not consumed any of the body.
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He was 26 at the time. His attorneys contend he deserves mercy because he is mentally ill. An expert on autism spectrum disorder will speak on his behalf Monday by video.
Underwood, now 44, complained in Oklahoma City federal court after a shake-up at the board left it with only three members. He asked U.S. District Judge Charles Goodwin to stay both the clemency hearing and his execution.
His attorneys argued he is entitled under the Oklahoma Constitution to have five members hear his clemency request. They also claimed his due process rights under the U.S. Constitution were being violated.
Gov. Kevin Stitt appointed Tulsa lawyer 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 the 10th U.S. Circuit Court of Appeals in 1998 rejected an Oklahoma death row inmate’s due process challenge to a 2-2 deadlock at a clemency hearing. The judge wrote the appeals court “held that the Oklahoma Constitution ‘clearly contemplates’ such a tie vote.”
The clemency hearing had been called off after acting chairman, H. Calvin Prince III, resigned Nov. 29 after coming under criminal investigation. The board’s chairman, Ed Konieczny, stepped down Nov. 6.
The clemency hearing was rescheduled from Wednesday to Monday morning after Attorney General Gentner Drummond complained about the cancelation.
The board can only recommend clemency. Stitt will make the final decision if it does. The governor cannot act if the board votes against Underwood.
This article originally appeared on Oklahoman: OK Pardon and Parole Board to go forward with clemency hearing Monday