Another chance for test

Published December 7, 2007

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http://www.gadsdentimes.com/article/20071207/NEWS/712070301/1050/OPINION

Supreme Court stay of execution raises old questions again

The U.S. Supreme Court gave a new lease of life this week to Alabama death row inmate Thomas Arthur, blocking the execution that had been scheduled for Thursday. It also gave new life to some questions that have been raised in relation to his case.

Arthur's lawyer sought the ruling over the method of lethal injection - which is already under review by the U.S. Supreme Court in a Kentucky case. Stays have been issued in other capital cases from other states in light of the pending appeals case.

It is a development that should again raise the question of whether the state should hold off on setting execution dates until the U.S. Supreme Court rules in the Kentucky case.

In addition to Arthur's case, the state has another execution set Jan. 31 for James Harvey Callahan. His lawyers have asked for a stay in lower courts, and expect they will get a stay because of the Kentucky case.

The Arthur case allows another question to resurface. His lawyers have repeatedly asked the governor's office to allow DNA testing of some physical evidence from the scene of the crime - the murder of Troy Wicker, whose wife Arthur had been involved with.

When the last stay was issued in Arthur's case - a decision from Gov. Bob Riley to halt the execution for 45 days so that the state could make some changes in its lethal injection procedures - the lawyers argued that tests could be conducted at no expense to the state - during that 45-day delay.

The governor did not authorize the tests, but has another opportunity to do so now. The state relies on DNA evidence to convict defendants; it should be open to the idea of allowing DNA tests when they can be used to clarify the facts of a case.

Certainly the state and the court system need to be sensitive to the plight of victim's families in capital cases. So often they've faced long waits for a case to go to trial only to face longer ones while a inmate's death sentence goes through the appeals process.

But if testing can put any questions about a conviction to rest - or uncover the involvement of someone else in a crimeÊ- it could ensure a more just resolution to a case. In this case, testing is unlikely to delay the case or cost the state anything, and we see little sound argument against it.

As for setting future execution dates while the Kentucky case is pending, it is hard to see the logic of the practice. Victims' families face an emotional roller coaster of waiting through appeals and court rulings. Scheduling an execution when the state can be relatively certain it is not going to be kept may well add more emotional hills and valleys for them.

It would seem sensible to hold off on setting execution dates until the state has reason to believe the executions can proceed.