The state and attorneys representing two men on death row are in conflict about whether legal options still exist for them to challenge their convictions or to proceed with their executions.

In court documents, attorneys from Attorney General Lynn Fitch’s office said Willie Jerome Manning and Robert Simon Jr., who have each been on death row for 30 years, have exhausted their legal options at the state and federal level, so it’s time to set their executions.

But attorneys representing them from the Office of Post-Conviction Counsel disagree, saying the men’s post-conviction relief petitions are still making their way through the court system and note that the Supreme Court, by law, is not required to set an execution if there is pending litigation.

“If a death-row inmate whose state and federal remedies have been exhausted could create an impediment to setting an execution date simply by filing another successive PCR motion, the State could never carry out lawful death sentences,” Fitch’s office wrote in its motion to set Manning’s execution.

On Monday, a spokesperson from Fitch’s office cited statute and case law, saying those determine the number of appeals a person is entitled to, and the courts ultimately decide whether someone has exhausted all of their legal remedies.

It would appear the court and even the AG’s office already did decide these two death row inmates haven’t exhausted them.

Last week, all nine justices of the Supreme Court agreed that it would not set Manning’s execution date until his post-conviction relief petition is reviewed. With the state’s Dec. 29 deadline to respond to Manning’s petition and his attorney’s 15-day deadline to respond, the earliest his execution could take place is mid January 2024.

In an April hearing for a federal lawsuit challenging the state’s lethal injection protocol that Simon has joined, the state recognized Simon was pursuing post-conviction relief.

“Until that habeas (post-conviction) petition is filed and resolved, the State would not move for execution in his case,” Special Assistant Attorney General Gerald Kucia told U.S. District Judge Henry Wingate.

A spokesperson for the attorney general’s office did not comment specifically about how attorneys from the office determined that dates should be set for Manning and Simon despite ongoing legal action.

One remaining avenue for relief is clemency from Gov. Tate Reeves, who during his first term in office has not granted it to anyone. 

Simon, now 60, was convicted with co-defendant Anthony Carr, who is also on death row, of killing the Parker family in Quitman County in 1990. Simon and Carr broke into the home of Carl and Bobbie Jo and their two children while the family was at church. They shot the family members when they returned home and set the house on fire.

Simon and Carr received death sentences for killing the Parker parents and 12-year-old Gregory. Simon was separately convicted for the murder, kidnapping and sexual battery of 9-year-old Charlotte and received a life sentence.

In October, the Mississippi Supreme Court appointed the attorneys from the Office of Post-Conviction Counsel to represent Simon, and his attorneys said he has a constitutional right to effective assistance of post-conviction counsel and to file a successive petition for relief because his previous post-conviction legal team was ineffective.

Over the years Simon has had multiple attorneys, including one who was disbarred. Others moved out of state or no longer work on capital murder cases.

His attorneys say previous legal teams didn’t retain an expert to evaluate Simon’s mental health and they failed to seek funding for a proper post-conviction expert to delve into Simon’s history of trauma, head injuries and exposure to toxins.

Experts were also not hired to determine whether Simon is intellectually disabled under the U.S. Supreme Court case Atkins v. Virginia, which prevents the execution of intellectually disabled people, according to court records.

He had previously been scheduled to be executed in May 2011, but a federal appeals court ordered a stay to determine whether Simon was mentally incompetent from a brain injury and memory loss from a fall, according to court records. The Mississippi Supreme Court later rejected Simon’s claim.

Simon’s attorneys on Nov. 21 filed a successive petition for post-conviction relief and raised claims about his mental competency and whether he can be executed, ineffective post-conviction counsel and a lack of experts to evaluate his mental health and present potential mitigating evidence.

“Simon has never had the opportunity to challenge the ineffectiveness of post-conviction counsel—until now,” the petition states.

Based on the claims raised, Simon’s attorneys are asking for his death sentence to be reversed. 

Manning, now 55, was convicted of shooting Mississippi State University students Tiffany Miller and Jon Steckler in 1994. He has maintained his innocence.

Two days after asking for an extension to respond to Manning’s September post-conviction relief petition, Fitch’s office asked the Supreme Court to set an execution date and dismiss his successive petition.

Manning’s attorneys said in court records that state law provides a remedy for newly discovered evidence, and that the state was wrong to say that the statute prohibits successive post-conviction relief petitions.

His petition documents discoveries of new evidence about recanted and testimony by witnesses and questionable firearms evidence used in his case.

Manning has been allowed to test additional DNA and run additional analyses since 2013, when a stay was ordered for his execution, but in court documents the state argues that those results have been inconclusive and he is now exhausted his legal options.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

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