Saturday, 29 December 2007

Riley won't order DNA testing

December 29, 2007

Riley won't order DNA testing

By Rick Harmon

Gov. Bob Riley said he will not order DNA testing for Alabama

death row inmate

Thomas Arthur because he does not have the power to do so.

"I simply do not have the authority to order post-conviction

DNA testing,"

Riley said during a telephone interview.

Last week six men who were exonerated by DNA testing

after being sentenced to

death sent a petition calling on Riley to order DNA

testing in Arthur's case.

The 65-year-old inmate was originally scheduled to be

executed Dec. 6 for the

1982 murder-for-hire slaying of Troy Wicker Jr.

of Muscle Shoals. But the U.S.

Supreme Court has effectively halted executions

nationwide until a Kentucky case

on the constitutionality of lethal injections is ruled on.

Riley said he supports post-conviction DNA testing,

and will support it again

when legislation making it mandatory is expected

to be introduced during

the upcoming legislative session.

But he said the way the law stands now, the power

to order and have the

state pay for such tests rests exclusively with the courts.

The governor's legal adviser, Ken Wallis, said he has

advised Riley that no

governor of Alabama has the power to order such tests

under the Alabama Constitution.

Wallis said although governors had extensive

powers 40 or 50 years ago,

the current constitution gives governors only two powers

relating to death penalty

cases: the power to grant a reprieve by reducing a

death sentence to

life without parole, and the power to temporarily

stay an execution.

"Certainly the governor doesn't have the power to

appropriate funds

for something that was never contemplated

under the budget," he said.

"The authority to do this lies with the court system,

and only the court system,

unless the Legislature passes a law changing that.

"In this case, Mr. Arthur has presented the request

to the court, been denied,

it has been appealed to a higher court, and it has been

denied on appeal.

In this case, all these things were addressed in motions

and in trial.

The evidence against him was overwhelming.

A co-conspirator pled guilty a

nd served time for this crime."

But Eric Ferrero, director of communications for The Innocence


which has helped coordinate the effort to have DNA testing

done in the case,

is skeptical both of Arthur's guilt and of the reasons for not

trying to prove

or disprove it conclusively through DNA testing.

Ferrero said while the constitution may not explicitly state

the governor

has such power, other governors, such as Florida's Jeb Bush a

nd President Bush,

when he was governor of Texas, have ordered DNA testing in

death row cases.

"Neither of them had an explicit law that said they could do that,

but they did.

They just felt they had the moral obligation to do that," Ferrero said.


have considerable leeway in cases like this.

"I think the real question to ask here is: 'Have they even tried?

Has anyone even challenged their authority to do it?'"

Ferrero said others involved with death penalty cases have long

been bemused

by how rare it is to hear governors say how powerless they are to

do things -- except

in death penalty cases.

"Before they said they wouldn't do it because we were trying to

use DNA tests as a

delaying tactic, but obviously that is not the case now because

it is already being

delayed," he said.

Ferrero believes a DNA test will exonerate Arthur. He said there

is now no reason

not to have the tests since DNA testing would take only about

a month and his

organization has agreed to pay for the testing. A DNA test for

such cases

usually costs in the thousands of dollars, according to Ferrero.

Attempts were made to interview Arthur's attorney, Suhana Han,

but she did

not return phone calls Thursday or Friday.

Judy Wicker, the murder victim's wife, initially told police that

a black man

had raped her and killed her husband.

She later confessed that she was having an affair with Arthur,

a work-release

inmate, and paid him $10,000 to kill her spouse so she

could collect $90,000

in life insurance.

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