U.S. District Judge Richard Rogers issued a stay Nov. 26 in the case of Ronald A. Gray, whose execution was scheduled for Dec. 10.
Gray, 43, was convicted in military court in 1988 and sentenced to die for two murders and three rapes in the Fayetteville, N.C., area while he was stationed at Fort Bragg. He pleaded guilty in civilian courts to two separate murders and five separate rapes and was sentenced to three consecutive and five concurrent life prison terms.
Attorneys for the Justice Department filed documents Tuesday asking Rogers to reconsider his stay order, saying Gray has had ample time to appeal his death sentence.
In seeking the stay, Gray's attorney, Thomas Bath, said he wasn't able to appeal until President George W. Bush signed the execution order in July. Bath noted that it took seven years from the time the U.S. Supreme Court denied Gray's request for review until Bush signed the execution order, starting the clock for further appeals.
The date and location of the execution - the federal complex in Terre Haute, Ind. - were approved in August.
Bath said Tuesday that he wants the judge to consider whether two changes in the military code since Gray's conviction and sentencing should apply to his case. Congress has since increased the number of jurors hearing military trials from six to 12. Also, military courts now must allow defendants to present mitigating evidence during sentencing hearings.
"His case is going to present some interesting issues," Bath said.
The judge could order Gray to stand trial again before 12 jurors or set aside the death sentence and order new sentencing, Bath said. Further appeals could follow a ruling.
Gray is being held at the U.S. Disciplinary Barracks at Fort Leavenworth.
Only 10 members of the military have been executed since 1951, when the Uniform Code of Military Justice, the military's modern-day legal system, was enacted.
Dwight Eisenhower was the last president to approve a military execution. In 1957, he approved the execution of John Bennett, an Army private convicted of raping and attempting to kill an 11-year-old Austrian girl. He was hanged in 1961.
On Feb. 12, 1962, President John F. Kennedy commuted the death sentence of Jimmy Henderson, a Navy seaman, to confinement for life.
Gray has appealed his case through the Army Court of Criminal Appeals - then known as the U.S. Army Court of Military Review - and the Court of Appeals for the Armed Services. In 2001, the Supreme Court declined to hear the case.
Besides Gray, four other members of the military - two soldiers, one Marine and one Air Force airman - are sentenced to die.