Texas appeals Edward Busby’s stay of execution on grounds of intellectual disability

A federal court has granted Edward Busby, a Texas man slated to be put to death later this week, a temporary stay of execution, according to documents reviewed Monday by The Dallas Morning News.  

Busby, 53, was condemned by a Tarrant County jury in 2005 for the abduction and murder of 77-year-old Laura Lee Crane, a retired Texas Christian University education professor. He is scheduled to be executed by lethal injection Thursday evening in Huntsville.  

The United States Court of Appeals for the Fifth Circuit issued the stay Friday, court records show. The Texas Attorney General’s Office appealed the decision shortly after. 

“We welcome this action by the Fifth Circuit and urge the State to abandon its plans to execute Mr. Busby in light of the constitutional issues at stake,” Kristin Houlé Cuellar, executive director of the Texas Coalition to Abolish the Death Penalty, wrote in a statement.  

The constitutional concerns begin with a U.S. Supreme Court ruling from 2002, Atkins vs. Virginia, which determined it is cruel and unusual punishment to impose the death penalty on people with intellectual disabilities. But the court left it up to each state to determine what criteria makes a person intellectually disabled, writing “not all those who claim intellectual disability will be so impaired to fall within the prohibition.”  

The ruling has spared Busby from execution once before. Busby’s first execution date in 2020 was stayed due to the COVID-19 pandemic. But in 2021, his second date was halted to allow two independent experts — one retained by the defense and the other by the prosecution — to assess Busby and review his claims. 

According to copies of the assessments obtained by The News, both experts concluded Busby’s IQ scores and “adaptive functioning impairments,” or ability to manage standard, daily life tasks, met the full diagnostic criteria for intellectual disability. His IQ scores, according to the assessments, have fallen within the range of 65 and 75, findings the prosecution’s expert said showed “substantial intellectual deficits.” 

A Tarrant County judge in 2023 said Busby failed to “establish that his general intellectual functioning, as reflected in the multiple results of the IQ tests administered to him, is significantly subaverage.”     

“The credible evidence, including evidence of his deficits, shows that Busby is capable of functioning adequately in his everyday world with an intellectual understanding and moral appreciation of his behavior wherever he is,” the judge wrote.

 His third execution date was scheduled late last year. 

In the appeal from the AG’s office filed Friday, the state argued Busby is not entitled to a stay because his previous appeals on the basis of an intellectual disability were denied, “and it does not allege innocence of his crime.” 

“The public has a strong interest in enforcement of Busby’s sentence,” the state’s filing reads. “His last-minute attempt to reraise a meritless claim is plainly a dilatory effort to delay his sentence. … Busby presents no reason to delay his execution date any longer.” 

Whether Busby’s stay will stand could rest, in part, with the U.S. Supreme Court, which is weighing a similar case out of Alabama: Hamm vs. Smith. 

The justices heard arguments in December about Joseph Smith, a man on Alabama’s death row whose IQ scores have ranged from 72 to 78. The court is seeking to answer whether — and how — multiple scores should be considered in assessing an Atkins claim. 

“Hamm is likely to confirm the constitutional rule we must apply in capital cases like this one,” the appeals court wrote of Busby’s case.