Friday, 30 November 2007

The Innocence Project letter to The Governor of Alabama Bob Riley

Barry C. Scheck, ESQ. Peler J. Neufeld, Esq. Directors

Maddy deLune, Esq. Executive DirectorInnocence Project
100 Fifth Avenue, 3rd Floor New York. NY 10011
Tel 212.364.5340
Fax 212.364.5341

www.innocenceprojeC1.oraNovember 5, 2007Bryan Taylor Policy

Office of the Governor of the State of Alabama State Capitol
600 Dexter Avenue Montgomery, Alabama 36130

Dear Mr. Taylor:

Thank you for your
request for guidance on how the Governor's Office should approach requests for
post-conviction DNA testing in capital cases. Especially since Alabama is one of
the few states without a statute allowing for access to post-conviction DNA
testing, I it is crucial that the Governor's Office have ajust and sound policy
on when such requests should be granted.Requests for post-conviction DNA testing
are made in a few different contexts, such as to develop evidence in support of
a motion to vacate a conviction or to modify a sentence, or in support of a
request made directly to the executive for commutation, clemency, or other
relief. In capital cases where a governor, as opposed to the courts, is
considering whether to authorize DNA testing, testing should be authorized where
such testing has the potential - assuming that testing will produce an
exclusion2 - to raiseI Currently, 42 states have legislation allowing defendants
post-conviction access to DNA testing. The states that do not.have such
legislation are Alabama, Alaska, Massachusetts, Mississippi, South Carolina,
South Dakota, Oklahoma, and Wyoming.
2 Exclusions can occur in three distinct contexts.
First, testing can produce an exclusion on a material piece of evidence where
this exclusion is by itself enough for relief.
Second, there are cases in which testing produces an exclusion and additionally
identifies a third-party suspect either through a match of the ON A profile to
the profile of a known alternate suspect or through a "cold hit" to a convicted
offender's profile in the state or federal DNA databases. As of December 2006,
there were almost 4 million convicted offender profiles in the national DNA
databank system, available at,
and to date, caDIs has aided over 45,000 investigations nationwide through
databank hits, including almost 1,800 in Alabama alone. See FBI, caDIs ­
Investigations Aided, available at http://www.fbLgov/hq/lab/html/codis2.htm.
Jeffrey Deskovic and Douglas Wamey are just two examples of defendants who were
exonerated when a DNA profile developedBenjamiA N. Cardozo School 01 Law,
Yeshiva University

doubts about the conviction or the appropriateness of the sentence. Instances
where testing should be granted include, but are not limited to, where testing
could possibly produce evidence that casts doubt on: the defendant's culpability
or participation in the crime; the extent of such culpability or participation;
or a finding of any aggravating circumstances. Obviously, testing should be
conducted where it could possibly refute forensic evidence used to convict the
defendant. In addition, testing should be authorized, irrespective of whether
the state or defense introduced that forensic evidence as an exhibit at trial,
if it meets the above criteria ..It is important to note that the standard we
are suggesting deliberately bases decisions as to whether to grant DNA testing
on the impact that a DNA exclusion(s) would have on a given case and not the
likelihood that DNA testing will produce an exclusion(s). This is crucial,
because so many DNA exonerations have involved cases where evidence ofthe
defendant's guilt seemed solid and overwhelming, only to be proven wholly
unreliable through DNA testing.3 Our fifteen years of litigating DNA cases has
taught us that there is simply no way to know prior to the DNA testing whether
the DNA results will be exculpatory or inculpatory.Finally, in light of these
suggested guidelines, we very much hope that you will reconsider your decision
to deny DNA testing in the Thomas Arthur case. As you know, the Innocence
Project has reviewed the facts of the case and has contacted your office to
request DNA testing on certain items collected from the crime. We believe that
the Arthur case easily fits within the category of cases where DNA testing
should be granted. Unlike prosecutors or defense attorneys, we are not
proclaiming the guilt or innocence ofthrough post-conviction testing "cold hit"
to a convicted offender who had not been suspected 0fhaving committed the crime.
In both cases, the convicted offender who was identified through the CODIS match
subsequently confessed and pled guilty.
Finally, there are cases in which an exclusion on a single piece of evidence
would not be sufficient for relief, but where an exclusion on multiple pieces of
relevant items plus the identification of the same foreign profile on those
multiple items can cumulatively justify relief. Such results, where DNA testing
establishes that the same genetic profile exists on a number of relevant items
of evidence, are referred to as "redundancies" and have resulted in several
exonerations. For example, Kenneth Wyniemko was convicted in 1994 of rape and
exonerated in 2003 after a redundant profile was obtained on numerous pieces of
evidence. Saliva from a cigarette butt, on nylons that had been stuffed into the
rape victim's mouth, and on blood and skin scraped from beneath the victim's
fingernails yielded a single male profile that excluded Kenneth Wyniemko as the
source of the DNA. While the results from each piece of evidence alone would not
necessarily have been sufficient to exonerate Wyniemko, the combined effect of
the results of the sophisticated DNA testing performed in 2003 caused the
original prosecutor to concede that "the DNA absolutely excludes him" as the
perpetrator. See Kim North Shine, "DNA Tests Exonerate Man After Nearly A Decade
in Prison, Suspect Is To Be Set Free," Detroit Free Press, June 12,2003.
3 For example, Kirk Bloodsworth was exonerated in Maryland in 1993 after being
sentenced to die and serving eight years in prison for the grisly rape and
murder of a nine-year-old girl. He was convicted based on the testimony offive
eyewitnesses, all of whom identified Mr. Bloodsworth as the man they saw with
the little girl prior to her murder. In addition, prosecutors presented evidence
that Mr. Bloodsworth had made incriminating statements and mentioned crime
details to police that were not publicly known. DNA testing revealed that he was
not the source of sperm found on the victim's underwear, proving that this
seemingly airtight evidence was wrong. See Nat'l Instit. Just., Off. Just.
Programs, U.S. Dept. Just., Pub. No. 161258, Convicted by Juries. Exonerated by
Science: Case Studies in the Use of DNA Evidence to Establish Innocence After
Trial, at 35-37 (June 1996), available at
http://www .nei /pdffiles/ dnaevid.pdf.

Mr. Arthur. Instead, we are advocates for utilizing science to ascertain the
truth. Here, science is capable of determining the truth. In fact, DNA testing
has the potential to conclusively prove that Mr. Arthur was not the perpetrator
of this crime and to identify the real killer. Judy Wicker, the wife of the
murder victim, testified under oath while on trial for conspiring to murder her
husband that her husband was murdered by a lone African-American gunman who
broke into their home, raped her, and then shot her husband. Mr. Arthur was
convicted when, years later, she changed her story in exchange for an early
release from prison and stated that she had in fact hired Mr. Arthur to kill her
husband and that the original story about the unknown perpetrator who had raped
her and killed her husband was a fabrication. DNA testing has the potential to
resolve which of Judy Wicker's sworn versions is true. For example, testing on
semen in Judy Wicker's rape kit, contact DNA that may have been left by the
perpetrator on Mrs. Wicker's clothing during their struggle, and "Negroid" hairs
found in her car, could reveal a DNA profile that excludes Mr. Arthur and also
"cold hit" in the DNA database to a person who fits the original description
that the victim gave to police. In addition, testing on these same items could
reveal a common "redundant" profile that excludes Mr. Arthur. Even without a
CaDIS "cold hit," if testing reveals that the "Negroid" hair in the car was from
the same person who also deposited semen detected in the rape kit or blood or
skin cells on Mrs. Wicker's clothing, such a redundancy would provide compelling
evidence of Mr. Arthur's innocence.Notably, such testing can be authorized
without even delaying the execution, since the execution date is currently set
for December 6, 2007 and testing could be completed in less than four weeks. We
very much hope that you will authorize testing without further delay so that it
can be completed before the execution date.We trust that this information is
useful to you as you consider the DNA testing request in the case of Thomas
Arthur and any others that come before you. We are happy to speak in more depth
about these suggested guidelines and are available to you if you have any
further questions.

Peter Neufeld
Olga Akselrod

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