December 3, 2007
Thomas Arthur’s case exposes the sordid underbelly of how the processing of a criminal case in the United States has evolved into a system that is not dissimilar from the operation of an assembly line.
An indicted or otherwise charged person begins their travail at the system’s induction end and (unless their case is rejected as a defective for some reason) they exit at the other end stamped guilty or not guilty with as little interruption as possible to the smooth functioning of the process. This necessitates obtaining an overwhelming percentage of convictions by a guilty plea, since a trial clogs the system. The three most obvious factors pressuring a guilty plea are prosecutors overcharging a defendant with alleged crimes, judges who make prosecution favorable rulings, and the over-burdening and under-funding of court-appointed lawyers that most defendants must rely on for representation.
A prosecutor’s guilty plea offer for reduced charges is a no-brainer for most defendants when the alternative is a much more severe sentence after a likely conviction resulting from representation by an overmatched court-appointed lawyer. The fabulous success of this strategy is evidenced by the 96% of convictions obtained nationwide by a guilty plea.
The system’s regularity of processing defendants is, however, interfered with by the low percentage of defendants who insist on a trial at the peril of facing an enhanced sentence if they are convicted. That peril is magnified by the Byzantine rules governing the direct appeal and post-conviction appeal process that follows a conviction.
When Thomas Arthur protested his innocence and went to trial in 1991 for the 1982 murder of a man in Muscle Shoals, Alabama, he did so with a court-appointed lawyer paid the $1,000 mandated by Alabama law. Arthur received the representation $1,000 will pay for – which isn’t much. Among other things his lawyer made no effort to investigate alibi witnesses that Arthur told him could establish that at the time of the murder he was more than an hour away in Decatur, Alabama. One thing the lawyer did do right was file a pre-trial motion for forensic testing of crime-related evidence that could exclude Arthur as being present at the crime scene. That evidence includes sperm, hairs, blood, and a bullet and bullet cartridges. The prosecutor opposed testing the evidence, and the trial judge denied the motion.
The prosecution’s “star witness” was Judy Wicker. When interviewed at the crime scene, she told officers that her husband, Troy, was shot by a black man who beat and raped her. A rape kit that included semen collected from her was preserved. Suspicious circumstances led to Judy being charged with her husband’s murder. At her trial she testified a lone black man committed the crime, just as she had told the police. Judy was convicted and sentenced to life in prison.
At the time of Arthur’s 1991 trial his prosecutor was Wicker’s former lawyer. He made a deal with Wicker that if she testified that Arthur murdered her husband she would be released on parole. She was released within days after Arthur’s conviction and sentence of death.
Again represented by an underpaid court-appointed lawyer, Arthur’s conviction was affirmed on direct appeal. Alabama does not provide post-conviction legal counsel to death row prisoners, and Alabama’s death row lacks a law library. So a death row prisoner without financial resources is dependent on finding a lawyer who will represent him (or her) pro bono. By the time Arthur found a law firm willing to represent him, Alabama’s courts ruled the time had expired for him to file a state post-conviction appeal, so his petition was dismissed as procedurally defaulted. Likewise, the federal courts ruled that the one-year time limit for filing a federal habeas corpus petition challenging Arthur’s conviction had expired. So the merits of Arthur’s post-conviction challenges to his conviction, which include the constitutional inadequacy of his trial counsel, have never been considered by any state or federal court.
On April 12, 2007, Arthur’s lawyers filed a federal civil rights lawsuit (42 USC §1983) for an order compelling Alabama to do what they had refused since 1991 to do voluntarily – allow forensic/DNA testing of the evidence. Arthur’s pro bono law firm was willing to have the evidence tested at their expense. Testing the sperm collected from Judy Wicker could prove Arthur didn’t rape her (or otherwise have sex with her), it could identify who did, and the other untested evidence could possibly also be linked to that same man – further identifying him as the actual murderer.
The lawsuit was filed five days before Alabama Attorney General Troy King requested that the Alabama Supreme Court set Arthur’s execution date, which on June 22 it set for September 27, 2007. Alabama opposed the DNA lawsuit, claiming it was a ploy to delay Arthur’s execution and they argued testing the evidence would not directly prove his innocence of committing the murder. After the U.S. District Court agreed with Alabama and dismissed the lawsuit, the Eleventh Circuit affirmed the dismissal. Arthur’s attorneys then filed a writ of certiorari in the U.S. Supreme Court.
While the Supreme Court was considering whether to review the dismissal of Arthur’s DNA lawsuit, Alabama Governor Bob Riley ordered a 45-day stay six hours before Arthur’s scheduled execution on September 27. The stay was to allow the state Department of Corrections time to revise its lethal injection protocol. The Alabama State Supreme Court subsequently set a new execution date of December 6, 2007. On November 26, 2007 the U.S. Supreme Court declined to review the dismissal of Arthur’s DNA lawsuit.
So as this is written on Monday, December 3, 2007, Arthur is three days away from his scheduled execution for Troy Wicker’s murder. The jury that convicted him did not make an informed decision. Their verdict was based on incomplete evidence because the prosecutor, with the trial judge’s aid, successfully blocked forensic testing of the crime-related evidence by techniques available in 1991. Why did the prosecutor who bribed Judy Wicker to lie under oath want so desperately to prevent the testing of the evidence? Is there any reasonable explanation other than that he knew it would have excluded Thomas Arthur from being present at the crime scene? Furthermore, the only reasonable explanation for Alabama’s continued opposition to the testing of that evidence by today’s most sophisticated forensic/DNA techniques is the fear of what the result would be – the exclusion of Arthur, and the identification of the DNA profile of who in fact murdered Troy Wicker.
The U.S. Supreme Court has accepted two cases that challenge the constitutionality of execution by lethal injection, so either the Court or Governor Riley may issue a stay of Arthur’s execution pending the Court’s decision in those cases sometime next year.
A stay, however, would have no effect on Arthur’s conviction. Arthur’s conviction resulted from a pop-gun defense by a grossly underpaid and ill-equipped court appointed lawyer, a prosecutor hell-bent on concealing the truth and getting Arthur’s conviction by any tactic no matter how unethical or even illegal, and a judge all too eager to be a modern day Judge Roy Bean. Arthur’s inability to get his conviction overturned is not because he doesn’t have issues that compel the granting of a retrial that comports with basic notions of due process, but because with very few exceptions, state and federal judges worship at the alter of maintaining procedural regularity at the price of disregarding the substance of a defendant’s claims. The hurdles a defendant must overcome to successfully challenge a conviction – no matter how shaky or insubstantial it may be – is indicated by the fact that the considerable legal and investigative efforts for six years by the New York law firm representing Arthur pro bono have been for naught.
If Arthur had pled guilty to Troy Wicker’s murder he would have been sentenced to life in prison. So his punishment for insisting on his innocence and going to trial was having his sentence upgraded from life to death. That was his “trial penalty.” Consequently, Arthur is not facing execution by the State of Alabama because he was convicted of Wicker’s murder, but because he demanded his right to a trial. Arthur’s conviction, and his sentence, are products of this country’s intolerance for the small percentage of people foolhardy enough to buck the assembly-line guilty plea bargaining system by publicly asserting they are in fact not guilty.
Thomas Arthur’s case exposes for anyone who cares to look, that the underbelly of the United States’ legal system is sordid: Its obsession with extracting guilty pleas to keep the system smoothly operating is based on a fundamental disregard for the truth of whether a conviction is based on the reality of the person’s guilt or innocence. Arthur may be actually innocent of Tony Wicker’s murder, but the legal system doesn’t care to find out as it hurtles toward his execution that every court, including the U.S. Supreme Court, has thus far sanctioned without considering if his conviction is actually legitimate.