Wednesday, 23 July 2008

Thomas Arthur`s motion for access to DNA evidence before July 31, 2008

Peti tioner, )
Case No. 195-1985
Petitioner, Thomas D. Arthur, now incarcerated
on death row at Holman State Prison in Atmore, Alabama,
by and through his attorney, petitions this Court under
Ala. Code §§ 12-2-2, 12-2-7 & 6-6-500 for access to
certain physical evidence that has never been subjected
to DNA testing. Such testing, the cost of whlch would
be borne entirely by Mr. Arthur's pro bono counsel,
could be conducted promptly and help demonstrate Mr.
Arthur's innocence before he is executed.
FACTS Mr. Arthur's execution is scheduled for
July 31, 2008 at 6 p.m. C.D.T. Despite the fact that
no physical evidence linked Mr. Arthur to the murder of
Troy Wicker, Mr. Arthur was sentenced to death based
almost exclusively on the testimony of a convicted
murderer and admitted perjurer: the victim's wife,
Judy Wicker, who, at the time of her testimony was
serving a life sentence for the very same crime.
Although Judy Wicker previously had testified under
oath at her own trial that Mr. Arthur was not involved
in her husband's murder, and told the police that a
burglar raped her and killed her husband, she changed
her testimony at Mr. Arthur's trial in return for the
proverbial ftget out of jail free" card.
Mr. Arthur's claims of constitutional
violations have never been reviewed on the merits by
any post-conviction court -- state or federal.
Notwithstanding Mr. Arthur's diligence in attempting to
present his collateral claims on a timely basis and the
circumstances that prevented him from doing so, the
Tenth Judicial Circuit Court for Jefferson County,
Alabama dismissed his Rule 32 petition as untimely, and
the Alabama Court of Criminal Appeals and this Court
affirmed. The United States District Court for the
Northern District of Alabama also refused to toll the
limitations period and dismissed his first and only
federal habeas petition as untimely. The Eleventh
Circuit Court of Appeals affirmed the dismissal of
Mr. Arthur's federal habeas petition, and the United
States Supreme Court denied Mr. Arthur's petition for a
writ of certiorari on April 16, 2007. Consequently,
Mr. Arthur stands to be executed. without ever having
received any state or federal substantive collateral
review of his trial and death sentence.
For many years, Mr. Arthur has persistently
sought critical pieces· of evidence in the
State's custody that have never been subjected to DNA
testing -- including a rape kit, blood-stained clothing
and hair from the crime scene -- and that, subjected to
such testing, could support his claim of innocence.1
In connection with its investigation of the murder of Troy Wicker, the State of Alabama collected various pieces of evidence as set forth in (continued.. .)
In 1991, Mr. Arthur, through trial counsel, filed a
motion to inspect, examine and test physical evidence,
including these items.. The trial court, however, never
ruled on that motion. In connection with his habeas
proceedings, Mr. Arthur filed a motion to conduct
discovery including, inter alia, discovery of these
same items; this motion was denied by the united States
District Court for the Northern District of Alabama.
In April 2007, Mr. Arthur filed an action
pursuant to 42 U.S.C. § 1983, requesting access to
physical evidence for DNA testing. The State of
Alabama moved to dismiss the complaint, which the
United States District Court for the Middle District of
Alabama granted, and the dismissal was affirmed by the
( . . . continued) memoranda prepared by officials at the State's Department of Forensics: (i) Memorandum to File by John H. Kilbourn, dated March 4, 1982 (Attached as Exhibit 1); (ii) Memorandum to File by Rodger Morrison, dated March 16, 1982 (Attached as Exhibit 2); (iii) Memorandum to File by J.G.
Wallace, dated April 28, 1982 (Attached as Exhibit 3); and (iv) Memorandum to File by Brent A.
Wheeler, dated May 7, 1982 (Attached as Exhibit
4) .
Eleventh Circuit. The United States Supreme Court
denied Mr. Arthur's petition for a writ of certiorari.
Governor Riley has also refused to exercise
his lawful authority to grant Mr. Arthur access to DNA
evidence. Despite the fact that the Innocence Project,
an internationally renowned organization that
specializes in DNA exonerations, supports Mr. Arthur's
request, and despite pleas from organizations and
individuals around the world -- including the former
Attorney General of Ohio, Governor Riley has refused
all such appeals.2 Such refusal to permit DNA testing
is inconsistent with the State of Alabama's official
policy of ~never oppos[ing] a post-conviction request
for DNA testing if it was not available at the time of
the trial, and if the request is supported by a
Attached as Exhibit 5 is a letter from Jim Petro, former AG of Ohio, to Governor Bob Riley, dated May 7, 2008. Attached as Exhibit 6 is a letter from Peter Neufeld and Olga Akselrod, Innocence Project, to Bryan Taylor, Policy Director, Office of the Governor, dated November 5, 2007. Attached as Exhibit 7 is a letter from Neufeld and Akselrod to Riley, dated December 3, 2007. Attached as Exhibit 8 is a letter from Neufeld and Akselrod to Riley, dated December 6, 2007. Attached as Exhibit 9 is a letter from Suhana Han, counsel for Mr.
Arthur, to Riley, dated August 31, 2007.
reasonable assumption that the test could prove
conclusively that the defendant is factually
innocent. ,,3
The State of Alabama's execution record has
been the subject of public concern. For example, as
noted by the United Nations Human Rights Council:
In Alabama, the situation remains highly problematic. Government officials seem strikingly indifferent to the risk of executing innocent people and have a range of standard responses, most of which are characterized by a refusal to engage with the facts. The reality is that the system is simply not designed to turn up cases of innocence, however compelling they might be. It is entirely possible that Alabama has already executed innocent people, but officials would rather deny than confront flaws in the criminal justice system.4
Dana Beyerle, Arthur Attorney Wants Evidence Tested, TIMES DAILY (Florence, Ala.), June 30, 2006 (quoting Attorney General Troy King) .
Press Statement, Professor Philip Alston, United Nations Human Rights Council Special Rapporteur on extrajudicial, summary or arbitrary executions (June 30, 2008), attached hereto as Exhibit 10.
Mr. Arthur seeks access to the following
physical evidence: (i) Judy Wicker's rape kit prepared
on the day of the murder, (ii) hairs and a wig from
Judy Wicker's 1981 Buick Riviera (the alleged get-away
car); (iii) Judy Wicker's blood-stained clothing and
ripped undergarment; and (iv) den floor vacuum
sweepings and hairs collected from the Wicker
residence.s None of this evidence has ever been
subjected to DNA testing. Mr. Arthur's pro bono
counsel would pay for such testing, which could be
conducted expeditiously.
Before. Mr. Arthur is executed for a crime for
which he has steadfastly maintained his innocence,
justice demands that DNA testing that could help
demonstrate his innocence be conducted. There is no
question that " [d]eath is a unique punishment. . . in
For a more detailed description of the relevance of the requested items, please refer to Exhibit 9, Letter from Han to Riley, August 31, 2007. These items of physical evidence are also described in memoranda prepared by officials at the State's Department of Forensics, attached as Exhibits 1 and 2.
a class by itself." Furman v. Georgia, 408 U.S. 238,
286-89 (Brennan, J., concurring). The Upenaltyof
death is different in kind from any other punishment
imposed under our system of criminal justice." Gregg
v. Georgia, 428 U.S. 153, 188 (1976). Because of the
final, irrevocable nature of the death penalty, "unique
safeguards" must accompany its application. Spaziano
v. Florida, 468 U.S. 447, 468 {1984}.
With the development of PCR and STR DNA
testing techniques, DNA testing can now determine
whether a DNA sample is consistent with the DNA profile
of a particular individual with a very high degree of
accuracy. This testing can be performed on small
amounts of evidence, and it can also be performed on
degraded evidence. See NAT' L COMM' N ON THE FuTuRE OF DNA
Moreover, with the development of mitochondrial DNA
testing, DNA testing can be performed on shafts of
hair. Id. at 28.
In Mr. Arthur's case, such DNA testing could demonstrate that Judy Wicker was telling the truth when
she reported to the police that a burglar had raped her and murdered Troy Wicker. By comparing the results to the FBI's national DNA database containing millions of DNA profiles of individuals convicted of crimes, Mr. Arthur could prove that Judy Wicker was raped by someone who was previously convicted of a violent crime, and that this person fits the description of her husband's murderer that she provided during her own trial.
Furthermore, DNA testing could demonstrate that the same person who raped Judy Wicker also physically assaulted her, that this person's blood was on her blouse, that his hair was found in the Wicker residence, and that this person was not Mr. Arthur.
Not only can such testing exclude Mr. Arthur, redundant DNA test results can also demonstrate the same genetic profile on multiple pieces of evidence. A match to a convicted offender profile of a person who had no reason to be in the Wicker residence on the morning of the murder would confirm that Judy Wicker testified truthfully when she stated that a burglar had killed Troy Wicker. Thus, DNA testing could provide powerful evidence of Mr. Arthur's innocence by demonstrating that the same person, i.e. the real perpetrator, is the source of DNA on multiple pieces of evidence.
Without the benefit of DNA testing here, the
State of Alabama assumes the intolerable risk of
executing an innocent man. Indeed, there is no
question that advanced DNA testing plays a critical
role in strengthening the integrity of the criminal
justice system. Such testing has resulted in the
exoneration of a number of convicted persons. There
have been 218 post-conviction DNA exonerations in
United States history. See Innocence Project, (last visited July 17, 2008).
While the State of Alabama has an interest in
meting out Mr. Arthur's sentence in a timely manner,
the need for finality cannot outweigh the need to
impose the death penalty reliably. This Court should therefore exercise its authority, under Ala. Code
§§ 12-2-2, 12-2-7 & 6-6-500, to grant Mr. Arthur access
to the requested DNA evidence. Although Mr. Arthur
believes that DNA testing, if ordered expediently, can
be conducted prior to his July 31 execution date, in
the event that this is not possible, Mr. Arthur also petitions this Court for a brief stay of execution, -10-
necessary only to allow time to conduct the DNA
For the foregoing reasons, the Court should
GRANT Mr. Arthur's Motion for Access to DNA Evidence,
and if necessary, GRANT a stay of execution for the
limited purpose of conducting DNA testing on such
New York, New York July 19, 2008
u ana S. Ran Jordan T. Razza ( 125 Broad Street New York, New York 10004 (212) 558-4000 (212) 558-3588 (facsimile)
I HEREBY CERTIFY that on this 19th day of
July, 2008, I caused to be served by fax and by United
States Postal Service Express Mail a copy of the
attached Emergency Motion of Thomas D. Arthur for a
Stay of execution on:
J. Clayton Crenshaw, Esq.
Office of the Attorney General Capital Litigation Division Alabama State House 11 South Union Street Montgomery, Alabama 36130-1052
Peti tioner, )
Case No. 195-1985
It is hereby ordered that Mr. Arthur's counsel
are granted access to each of the items described in
Exhibits 1 and 2 to Mr. Arthur's Motion for Access to
DNA Evidence Before July 31, 2008 Execution. Mr.
Arthur's execution is stayed until such time as DNA
testing of these items is completed.
_____, 2008
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RG: Case 02-82-"167 Judy WIcker, sUbJect Ref: 82-206" HV
~DlM: To FII.
f1( Rods-r Morrison, Crllllinalist SUBJECT ExaIllnatlon of PhysIcal Evidence
February 3, 1982, at 1100 hours, the f.ollow' ng evldlNlCe W8S recel ved f~ Crlalnallst J.G. Ne'lace for Ina'vsls:
I. One sealed MMKIT Rape Kit labeled In part with the subJect's .... ancl COIItalnlng;
a. ona ......napperact vial of blood IdentifIed a. fraa Judy 'Ucker.
b. fingernail scrap I ngs.
c. tlMd hal.. S8lIlp'..
d. saliva ....1..
e. pubic hair CClISblnga.
f. pubic hair saMple.
g. vaginal swabs and slide..
The blood sanrpl. franl Judy Wicker reacted In a manner consistent wl'h ABO group A blood.
No debris was observed In th. f Ingerna i I scrap i ngs .
The saliva sample wos bloody, however, It reacted In a manner cor.~Jstent ",ith having COIftI frOll a gr"OUp A secretor.
No hairs we..e found In the pubiC hair combings. .
A 5mf11 number of spermtozoa wa..e Identified In the vaginal swebs ~nd 51 Ides. A and H antigens were dttected in the vagina. swab.
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April 28. 1982
Re: Casl OlA-82-206l5 Troy Wteker. Jr., subject CaSI 02-82-15161 Judy Wteker, subject
MEDANDUM: To F~.le .:
BY .: J. 6. Wlllace. Cr1~naltst
Exanrfnatton of Scene
February l, 1982, at 1015 hours. thl undersigned was requested to eJWIine a res I duel located ae 301 HIghland Avenue, ltasel. Shoals, Alaba. by Lteu....t Robert Han of the Muscle Shoals Polfce Depan-nt.
EXUltnat1an 01 the tntertor of thl house revealed tt to be 1n COIIIPlete disarr.,. elO$le, drawer Ind clbfnt' contlnts Wire on the floor.
lh. bid tn the rear bIcIroOJI eonta1nfd till bod,y of . whttt ..1.· t"'ttft.~ al 11'01 Vicker. dr. n.1 bacIr was posftfaned on its back wfth the bed .
CONn pulled up to dlest levtl.. N.....ous black partteles wen noted on . thl bed, .1ong with faur "P8ft cartridge casings. .....rous reddish-brown stltns. appeartng to be blood. were located on the wall behind the head of the bod,y.
Thl din area of the housl contained, along with other things, one pair of pants. onl blousl and I plir of panties.
The house WIS eXlJlltned fOJ" the presence of latent fingerprints and the following 1tellS were reJIIOved and returned to the laboratory:
1. Four spent cartridge casings removed from bed 2. One pillow and pillow case removed fl"Olll under ·the held of the body 3. One billfold with n..rous pictures and paper remved fl"Oll floor in relr bedro..
4. One cln of Consort hair spray realCr:ed frOll bathroont located off rear bedl'OOll S. One snall wooden box 'rOll rear bedrOOll closet 6. One hand mirror rtmved from bathroom located off hill 7. One can of Style hatr spray rllDved trOll bathrGCIIlocatecl o'f hall 8. Three cups and ten glasses removed fro. floor adjacent to kitchen
Cases 01A-82-20615 - 02-82-15167 - Examinatfon of Scene
Page 2
9. One cookie jar retIIOved fr~ kitchen 10. One Crisco can ,...ved f". kitchen 11. One peanut butter jar reIIIOved froll kf tehen 12. On, popcorn jar ....,.d f.... kttchen 13. One VUI and top relllDnd' frCII deil 14. Sa.,l, of carpet ',bers ,... clen floor 15. Clothes (pints. blouse and panties) relllOved fl"Oll den floor 16. . One ct prette butt f,.. den f1 oor .
17. One nail clfpping f". den floor
The foll.tnl latent trint Ufts of value were rtIIOYed frill the house or frcJfll iu. ....ved·',.., tM"house and trlnsferred to the ldenttflcltion Unit of the Allb_ Burelu of Investigation fn Mont~ry. Allbut. The results of their "eXla'lnattan Ire covered fn separate reports to this fUe.
1. Ntne latent ftngerpMnt lifts ',,:HI I popcorn jar found tn the kitehen.
These.prints are fdentified by ASI as Lit. "s'l. 2. 3."4. 11. 12. 19.
20, 21. .
2. One lltent 11ft trOll I hind IIfrror found In the hall bathJ'GOlllnd fdentt tied by All as Lat. '5 3. Three latent 11fts tl'Oll the vase removed 'raa den and tdenti ffed by ASI as Lit. ,ts 6. 7. 8 4. One latent 11ft"'" the Vlst top and fdentified by All II Lat. 19 s. One latent 1 tft .-.oved fl"Gll the .f..rar in the bathroe. located off the rear bMJ"DCIII and ldenttffed b1 All IS Lit. '10 6. Th.... latent 1 tfts ,..... trOll the St)'le hafr sp...., can Ind tcltnttffed boY All u. Lit "s 13" 14. 15 7. Th.... latent lifts reID~ frolll the Crisco can and identified by All as Lit. "s 16. 17. 18 8. One latent lift removed frOll the peanut butter jar and identified by ABI II Lat. 122 9. Two latent l1fts retIIOved froll cookie jar and identified by ASI as Lat.
"5 23. 24 10. One lat:8lt 11ft reIIOved '1'01I hall bathrOOll vanity top and identified by All u Lat. '25 11. One latent 11ft reIIIOYed frolll the top of the clothes dryer and identified by All IS Lat. '27 12. OM latent 11ft removed fram the top of the d~esser located in the rear bedrooll and ident"fied by ASI as Lat. '28
Examination of the Consort hlir spray can. wooden box. cups and glasses revealed no latent prints of value.
On the sa. day. Lieutenant Toe Berrylllln of the Muscle Shoals Polfce Department sub.ttted one rape kit bearing the name Judy Wicker.
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3. On be. vitia nd. ... ... 1tzvwa fJ.own ......, 'eppet:ell" p~ f~ a pi1JARr a& t1Ia ....
4. "our MUla ~ each caataiDiDI a eel .22 1011I 01' 1011It:1Il. fin4 canridp"caH froa tIaa Hd at the lie...
b-1"ation of the bW.1et: ZOftaal.. that it va. couiaceat: vitia eCI ''M1ni~ .22 10D&-1'ifl. --ftUD. It WI f1l''' f~ a ..pon vith .:lx lud. ..... anon. :Sa a clocbiae rotat:laG. All fOUl' c:al'trt.cJ.e c....
nr. f1.nd 111 tile ,....-..u of tile __ weapoD.
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CBS. OlA-82-2061' - Bx..1aation of Fir.ara Evidence - Pa.e 2
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May. 7. 2008 3:16PM
No. 0738 P. 2
107 S. HlOll STRImT, Surrl! 450 COLUMBUS, OmO 43215 Tnu!PHONB (614) 223-0000 FAX (614) 341-2354
May 7, 2008
The Honorable Bob Riley Govemor of the State of Alabama State Capitol 600 Dexter Avenue Montgomery, Alabama 36130
Re: ThOlWlS D. Arthur
Dear Governor Riley:
I am wliting with t"espect to Mr. Thomas . Arthur's request for DNA testing prior to his execution. During my time as the Attorney General of Ohio I was deeply involved in the State's use of capital plmi~ment. including presiding over fourteen executions. In my role. 1 developed a profound understanding of the role that DNA can play in ensuring that. when carrying out society's ultixnate punishment, the con:ect person is executed. It is because of my experience with the powerful truth-seeking nature of DNA that I am writing to you in support of Mr. Arthur's effort to secure DNA testing before bis execution.
Mr. Arthur's case was brought to my attention by the Innocence Project.
I have reviewed the letters the Innocence Project sent to you on. Novetnber 5, 2001 and December 3, 2007. I have also reviewed the letter Mr. Arthur's attomey sent you on August 3.1, 2007. Like the Innocence Project, I take no position as to whether Mr. Arthur is factua11y innocent of the brutal crime for which he was convicted and sentenced to death. Rathel'~ I am simply urging you to allow the evidence in Mr. Arthur's case to be subjected to DNA testing.
As Ohio Attorney General. I became involved in two cases where DNA testing was ordered. The first case involved Clarence Elkins~ a man serving a life . sentence for murder and rape. My office had evaluated the DNA of male skin cells taken from the victim and that analysis excluded Elkins as the source of those skin cells. Thereafter. additional investigation confinned by my office, identified another convicted offender, whose DNA was profiled by my office during his incarcetation, as the source of the male cells found on the victim. We
May. 7. 2008 3: 16PM
No. 0738 P. 3
The Honorable Bob Riley May7~2008 Page 2
undertook steps to additionally verify these results, and I then joined with Elkins' counsel in seeking relief on behalf of Elkins. Ultimately, after seven years in prison, Elkins was eotnpletely exonerated by a court determ.ination of actual innocence, and the other individual is nOW pending trial for the murder and rape.
The case of John Spirko involved the bmtal abduction and murder of a.
small town postmistress. Spirko's conviction was based solely on.lmcorrobomted circumstantial evidence; and, through the trial and subsequent appeals, Spirko had consistently denied any involvement in the crime. Spirko was scheduled to be executed in early 2006. Prior to the set date for execution. evidence was identified whioh could allow for a DNA eXlUnination and analysis. I approved this further analysi~ and requested that Governor Bob Taft grant a 6O-day l-eprieve to complete this analysis. On foUr successive occasions~ I requested reprieves of the Governor pending further DNA analysis. Ultimately, the analyses were inconclusive, but Governor Ted. Strickland determined to commute Spirko's death sentence to life imprisonment without parole.
Just as in Mr. Elkins' and Mr. Spirko's cases in Ohio, theJ:e al'e troubling aspects of Mr. Arthur's case. I 8m certain that you are very familiar with his case and his requests for DNA testing; however, I wanted to highlight a few of the particular aspects oihis case that support DNA testing. I wish to emphasize again that I am not raising these factors in an effort to demonstrate Mr. Arthur's innocence. Rather, I raise them to SUppo1t using DNA technology to answer the factual questions about what, if any, role Mr. Arthur played in the crime.
. Mr, Arthur was convicted largely on the testimony of the victim's wife, Judy Wicker. As you know, Ms. Wicker was the original suspect in her husband'g murder. Ms. Wicker initially claimed that an intruder burglarized her home~ raped her, and ldIled her husband. Despite her account, she was convicted of the crime and sentenced to life for her husband's murder. After serving approximately ten years of her life sentence, Ms. Wicker recanted her initial story and teStified at Mr. Arthur's trial that she hired Mr. Arthm to kill her husband. In exchange for this new testimony, Ms. Wicker received an car.1y release from her life sentence.
. None of the Clime scene evidence, including the rape kit and clothing that was collected from Ms. Wicker as a result of her ini1ia1 account to police that she was raped by an unknown intruder, has ever been subject to DNA testing. In addition to the rape kit and Ms. Wicker's clothes, there were foreign hairs from an African American person found in the victim's abandoned car that are consistent with Ms. Wicker's original claim that her
May. 7. 2008 3: 17PM
No. 0738 P. 4
The Honorable Bob Riley May 7, 2008 Page 3
home was burg1ari2ed and she was raped by an African American man.
. The victim's sister, Peggy Wicker, supports DNA testing of the evidence.
. Due to procedural requirements and his own limitations. Mr.
Arthur's conviction and sentence have never been subject to substantive collateral review at the state or federal level. For examp1~ procedural rules have prevented live testimony of alibi witnesses who bad previously stated under oath that Mr. Arthur was in another town at the time of the crime.
In addition to the reasons outlined above that are specific to Mr. Arthur's case. I urge you to order DNA testing because doing otherwise undemrlnes the public's confidence in our criminal justice system. Here, 1hc DNA tests, among other things, could conclusively demonstrate which. of the two conflicting accounts Ms. Wicker provided about the crime are actually true. Such information is directly l'elevant to the appropriateness of Mr. Arthur's pending execution. As a l'CSult, it is vital not only to Alabama and the integrity of future executions carried out by your State, it also implicateS the public's acceptance of capital punishment throughout the country, as individuals increasingly ask the question of whether the State can be trusted not to execute an innocent person.
I thank you for your careful review of Mr. Arthur's case and your consideration of this matter. I am more than happy to speak: with you about Mr.
Arthur's case or about more general questions as to when requests for DNA testing from individuals sentenced to death should be considered. You can reach me at (614) 223-0000.
cc: The Honorable Troy King Bryan Taylor
Barry C. Scheck. Esq. Peter J. Neufeld, Esq.
Maddy delone, Esq. Execltive Director
Inomoca Project 100 f1l1h Atam, 3rd floor New York. IV 10011 Tal 212.364.5340 Fax 212.364.5341
~. Iww.lnnoclnceproject.oru
November 5, 2007
Bryan Taylor Policy Director 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,l 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 raise
I 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 DNA 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 http://www.fbi.govlhq/lab/pdf/codisbrochure.pdf, and to date, CaDIS has aided over 45,000 investigations nationwide through databank hits, including almost 1,800 in Alabama alone. See FBI, CODISInvestigations Aided, available at Jeffrey Deskovic and Douglas Warney are just two examples of defendants who were exonerated when a DNA profile developed
Banjamil N. Canlm Sclool 01 Law. Yeshira Ulilarslty
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 of the 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 of
through post-conviction testing "cold hit" to a convicted offender who had not been suspected of having committed the crime. In both cases, the convicted offender who was identified through the CaDIS 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 of five 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 Nafl lnstit. Just., Off. Just. Programs, U.S. Dept. Just., Pub.
No. 161258, Convicted bv Juries, Exonerated bv Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. at 35-37 (June 1996), available at http://www.ncirs.~ov/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 CODIS "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
Barr, C. Scheck, ESQ. Peter J. Neufeld, ESQ.
lIad~y delone, Esq. Execuli,e Director
Iinocence Project 106 fim Annue. 3~ flur .Bllort, NY 16011 Tel 212.364.5340 Fax 212.384.5341
December 3, 2007
By Facsimile aDd Overnight Mail
The Honorable Bob Riley Governor of the State of Alabama State Capitol 600 Dexter Avenue Montgomery, AL 36130
Re: Thomas Arthur. Set to Be Executed December 6. 2007
Dear Governor Riley:
On November 5, 2007, in response to a request from your Policy Director Bryan Taylor for guidance on how the Governor's office should address requests for postconviction DNA testing in capital cases, even where the courts have declined to do so, we sent Mr. Taylor a letter (enclosed here) outlining general guidelines to apply to such requests. We also specifically applied the guidelines to Mr. Arthur's case and provided our assessment that Mr. Arthur's request to the Governor's office for DNA testing should be granted because of the clear way in which DNA testing could provide compelling evidence of Mr. Arthur's innocence. We are now days away from Mr. Arthur's scheduled execution, and we have received no response to our letter or to calls we made to Mr.
Taylor's office seeking to follow up on the letter.
We are deeply disappointed by the manner in which the Governor's office has handled Mr. Arthur's request for testing thus far and do not understand the reason for its failure to take action. Your office long ago stated that you did not want to order testing that would delay the execution, yet had your office ordered testing when Mr. Arthur fIrst requested your office to do so at the end of August or even after receiving our letter of November 5, we would already have the results. Thus your decision not to order testing had absolutely nothing to do with not wanting to delay the execution. Had you authorized testing, those results could have provided evidence of Mr. Arthur's innocence and even identifIed the true killer, or alternatively confirmed Mr. Arthur's guilt and put to
Benjamin .. Cardlzo Schel' 01 Lall, Yeshiva Dnilersity
rest any lingering doubts about who killed Troy Wicker, without any delay to the execution.
The time for inaction is now at an end, and the Governor's office has only a few days remaining. We urge your office to issue a stay immediately and implement the DNA testing we recommended. If your office fails to do so, there is much to lose.
Allowing an execution to go forward without first conducting DNA testing that could scientifically confirm. or refute guilt not only risks putting to death an innocent man, but also does irreversible damage to the public's confidence in the state's criminal justice system and its elected officials.
Baril C. Scheck, Esq. Peter J. Neufeld, Esq.
Maddy deLone, Esq. EJecutive Director
11.leIK" Project 100 FIft~ Avenll. 3111 Flm IN fori, NY 10011 Tel 212.384.5340 Fix 212.364.5341
December 6, 2007
By Facsimile and Overnight Mail
The Honorable Bob Riley Governor of the State of Alabama State Capitol 600 Dexter Avenue Montgomery, AL 36130
Re: Thomas Arthur
Dear Governor Riley:
As you know, yesterday, the Supreme Court of the United States issued a stay of today's scheduled execution of Thomas Arthur. That stay is likely to remain in place until the Supreme Court decides the lethal injection issue in Raze v. Rees, which could occur anytime after arguments in the Baze case are heard in January. Though you publiCly stated months ago that you did not want to order DNA testing that would delay the execution, you inexplicably failed to order testing during the 45-day stay that you issued on September 27, 2007. The Supreme Court stay affords you yet another opportunity to allow DNA testing to go forward without causing any additional delay to the execution.
Now is the time to act. As we have stated repeatedly to your office -- including in a letter we sent over a month ago in response to your office's request for guidance, to which your office has yet to respond - such DNA testing has the power to establish to a scientific certainty whether or not Thomas Arthur killed Troy Wicker. The conviction in this case rests almost exclusively on the inherently unreliable testimony of a witness who testified in exchange for release from prison, and it is universally accepted that DNA constitutes the most reliable form of evidence. Moreover, DNA testing has only three possible outcomes, which can serve only to benefit the state. First, it can confIrm Thomas Arthur's guilt and put to rest any lingering doubts. Second, it can simply provide no new information at all. Or third, it can prove Thomas Arthur's innocence and
Benjamin .. Cardozo SCbaDl allal, Yubln UnirersllY
possibly even identify the real killer, preventing the state from erroneously executing an innocent man and eliminating the danger from the real killer remaining at large. A failure on the part of your office to order DNA testing is morally unjustifiable.
~ " II ~IU "J JelerNeufeW Olga Akselrod
125 BROAD STREET NEW YORK, N.Y. 10004-2498
August 31, 2007
By Facsimile and Overnieht Courier
The Honorable Bob Riley Governor of the State of Alabama State Capitol 600 Dexter Avenue Montgomery, Alabama 36130
Re: Thomas D. Arthur - Execution Date of September 27.2007
Dear Governor Riley:
I am pro bono counsel representing Thomas D. Arthur, a death-row inmate with a September 27,2007 execution date, who has steadfastly maintained his innocence.
On Mr. Arthur's behalf, I write to request access to critical pieces of evidence for purposes of DNA testing at no cost to the State of Alabama. None of the requested evidence, including a rape kit, has ever been subjected to DNA testing. Mr. Arthur is not interested in a commutation of his sentence and instead only seeks an opportunity to demonstrate-before he is executed---that he did not kill Troy Wicker. Although questions bearing directly on Mr. Arthur's culpability remain unanswered, DNA testing can resolve such doubt As recognized by the Innocence Project, with whom we have been working, the value of DNA testing here is unquestionable. Moreover, the victim's sister, Peggy Wicker Jones, fully supports Mr. Arthur's request for DNA testing, because she ''would like to have as much information as possible about what happened on the day [her] brother Troy was murdered." (Affidavit of Peggy Wicker Jones at ~ 12, dated August 21,2007 and attached as Exhibit A.) Although Ms. Jones "believe[s] that someone should pay for [her] brother's death," she is "not sure that person is Tommy." (Id. at ~ 14.)
As further described below, the unique circumstances of Mr. Arthur's case warrant DNA testing:
. New testimony from an alibi witness confirms that Mr. Arthur was nowhere near the Wicker residence on the moming of the murder.
The Honorable Bob Riley
· No physical evidence linked Mr. Arthur to the murder of Troy Wicker.
Instead, his conviction was based almost exclusively on the testimony of the victim's wife, Judy Wicker, who had previously testified that a burglar killed her husband.
· Judy Wicker was convicted of and sentenced to life imprisonment for the same crime. At her own trial, she testified that an intruder burglarized her home, assaulted her, and then shot Troy Wicker. A police officer who arrived at the crime scene testified that he had interviewed Judy Wicker and she told him that she had been raped. These sworn testimonies were corroborated by physical injuries Judy Wicker sustained from a struggle, blood-stained clothing, tom undergarment, and a rape kit that was prepared on the day of the murder.
· In exchange for early release from a life sentence, Judy Wicker testified against Mr. Arthur at his trial, changed her story, and claimed that he had pulled the trigger.
· DNA testing could demonstrate that Judy Wicker testified truthfully at her own .trial when she stated that a burglar assaulted her and murdered Troy Wicker. By comparing the results to the FBI's national DNA database containing millions of DNA profiles of individuals .convicted of crimes, Mr. Arthur could prove that Judy Wicker was raped by someone who was previously convicted of a violent crime, and that this person fits the description of her husband's murderer that she provided during her own trial.
· Mr. Arthur was convicted and sentenced to death on unsubstantial and unreliable evidence due largely to the fact that he was denied effective assistance of counsel. Mr. Arthur's appointed counsel conducted virtually no independent investigation into either the underlying crime or potential mitigating evidence.
· Mr. Arthur stands to be executed without ever having received any substantive collateral review-by a state or federal court-ofbis conviction or death sentence.
While the State of Alabama has an interest in meting out Mr. Arthur's sentence in a timely manner, the need for finality cannot outweigh the need to impose the death penalty reliably. Without the benefit of DNA testing here, the State of Alabama assumes the intolerable risk of executing an innocent man. Pursuant to your clearly established executive authority to provide the requested relief, Mr. Arthur should be granted access to physical evidence and a stay to conduct DNA testing.
The Honorable Bob Riley
I. Factual Background and Mr. Arthur's Trial
On February 1, 1982 at 9: 12 a.m., the police responded to a call at the Wicker residence in Muscle Shoals, Alabama, where they found Judy Wicker lying on the floor with traces of blood on her face and her sister Teresa Rowland kneeling beside her. The police also found Troy Wicker's body in the bedroom with a single gunshot wound to the right eye.
The police collected physical evidence from the crime scene, including Judy Wicker's blood-stained clothing and tom undergarment, vacuum sweepings, hairs, shell casings, and a pillowcase with gunpowder flakes. The police also dusted the area for latent fingerprints. The police located Judy Wicker's 1981 Buick Riviera, which had been abandoned in a parking lot; the police searched it and found a wig, hairs, and latent fingerprints. The murder weapon was never recovered. The hairs and fingerprints found at the crime scene and in the Buick Riviera were tested, but they did not match Mr. Arthur's.
After the shooting, Judy Wicker was taken to the hospital and remained there for several days. She suffered a bruise around her left eye, a laceration of her left upper lip, two chipped teeth, and an abrasion on her left hip. Moreover, on the same day as the murder, a rape kit had been prepared and seminal fluid collected. In response to questioning by investigators, Judy Wicker provided the following account of the crime:
She returned home after dropping her children off at school. When she entered her house, she found an African-American man burglarizing her home. The burglar assaulted her and then shot Troy Wicker. Consistent with this account, Officer Lanny Coan testified at Judy Wicker's trial that shortly after he arrived at the crime scene Judy Wicker told him that she had been raped by an African-American man.
Judy Wicker was eventually charged with her husband's murder under the theory that she killed him to collect approximately $90,000 in life insurance proceeds.
At her trial in 1982, she testified under penalty of perjury to the same version of events that she had related to the investigators. Despite her claims of innocence, Judy Wicker was convicted of murdering her husband and was sentenced to life imprisonment.
At Mr. Arthur's trial in 1991,1 Judy Wicker gave a completely different account of the murder. Although she previously had sworn under oath that a burglar assaulted her and murdered her husband, Judy Wicker now claimed that she, along with Teresa Rowland and her sister's boyfriend, Theron McKinney, had decided to kill Troy Wicker, and that she had paid Mr. ArthUr to pull the trigger. She also paid Rowland $6,000 and gave McKinney jewelry and a Trans Am in exchange for their assistance in
This was Mr. Arthur's third trial on the same charges. His two previous trials resulted in convictions and death sentences, each of which was overturned on direct appeal as a result of constitutional violations.
The Honorable Bob Riley
carrying out the murder. The State of Alabama, however, never prosecuted Rowland or McKinney. .
During Mr. Arthur's trial, Judy Wicker also testified that on the day of the .
murder she dropped off her sons at school and twice drove across Avalon Avenue, and that she met her sister and Mr. Arthur at the airport. Judy Wicker further testified that Mr. Arthur had painted his face and wore an "Afro wig" as a disguise, and carried a gun and a garbage bag.
At the time she testified against Mr. Arthur, Judy Wicker was serving a life sentence for the same crime. In return for her testimony, the state prosecutor, Gary Alverson, promised to make a parole recommendation on her behalf. Prior to becoming a state prosecutor, Alverson had represented Judy Wicker and assisted her in procuring a deal from the then-prosecutor in exchange for her testimony.
The circumstantial evidence introduced at Mr. Arthur's trial to support Judy Wicker's story was weak:. Officer Lang testified that he observed Judy Wicker driving past a school crossing twice prior to 8 a.m. This testimony just as credibly supported her initial story that an unknown intruder assaulted her in her home and killed her husband. Pat Halliday testified regarding Mr. Arthur's possession of a large amount of money after the murder, but this testimony was also consistent with evidence that Mr. Arthur had won money in a poker game. Debra Philips testified merely that Mr. Arthur threw a garbage bag into the Tennessee River. Patricia Yarborough Green testified that Mr. Arthur stopped by Cher's Lounge between 2 p.m. and 4:30 p.m. and asked her for bullets, that she asked Terry Lewis to purchase .22 caliber bullets from Woolco and he did so between 3 p.m. and 4 p.m., and that she provided Mr. Arthur with these bullets while he was still at Cher's Lounge. Green also testified that Mr. Arthur told her that the bullets would be used to kill someone in Tennessee, not Alabama. Troy Wicker, however, was killed in Alabama. Moreover, Green's testimony was contradicted by Lewis' prior testimony that he gave the bullets to Green around 6: 15 p.rn} which also undermines Green's testimony about what time she gave the bullets to Mr. Arthur.
Furthermore, the State's criminologist was unable to match such bullets with the spent shell casings recovered from the crime scene.
During Mr. Arthur's three-day trial, he was permitted to represent himself.
As he explained to the trial court, Mr. Arthur's decision was the result of his intense frustration with his counsel's failure to communicate with him and to prepare adequately for trial. The court, however, did not hold a hearing or engage in a colloquy to determine whether Mr. Arthur's decision was knowing and voluntary prior to granting his request to represent himself. The penalty phase that followed lasted less than an hour and a half
Terry Lewis testified at Mr. Arthur's first and second trials but was l.Ulavailable during the third trial.
The Honorable Bob Riley
Mr. Arthur's counsel conducted no independent investigation and offered no mitigation testimony.
On December 5, 1991, Mr. Arthur was convicted of capital murder for the 1982 killing of Troy Wicker. On the same day, the jury recommended the death penalty bya vote of 11-1.
II. DNA Testing Is Warranted
In connection with its investigation of the murder of Troy Wicker, the State of Alabama collected various pieces of evidence. Mr. Arthur seeks to conduct DNA testing on the following:
Judv Wicker's Raue Kit. A rape kit was prepared when Judy Wicker was taken to the hospital shortly after the police arrived to investigate the murder, and the kit was sent to the State of Alabama's Department of Forensics. The rape kit created on the same day as the murder was never subjected to DNA testing. Indeed, the DNA testing that Mr. Arthur seeks to conduct (Short Tandem Repeat DNA testing) was not even available during his trial.3 Although the Attorney General has argued that exculpatory DNA test results would not prove or disprove Mr. Arthur's guilt because he was not convicted of raping Judy Wicker, this argument ignores the fact that such results could confirm testimony from Judy Wicker's trial that an African-American man burglarized the Wicker residence, assaulted Judy Wicker, raped her and then shot Troy Wicker.
DNA testing of the rape kit would do much more than merely show that Mr. Arthur did not rape Judy Wicker. Such testing could identify the real perpetrator.
The advent of national DNA databanks has allowed law enforcement officials to solve thousands of "cold cases," some of them decades old and with no other leads or suspects until a match in the databank: points to the perpetrator. The FBI's Combined DNA Index System ("COD IS") integrates DNA profiles gathered at the state and local levels into a national DNA database. This database contains over 4.5 million convicted offender DNA profiles and over 177,000 DNA profiles from unsolved cases. Each profile consists of a unique set of DNA identification characteristics.
If the results from Judy Wicker's rape kit matched the DNA profile of a convicted felon from the CODIS database, such match would completely undermine confidence in Mr. Arthur's conviction. The circumstantial evidence against Mr. Arthur cannot withstand DNA test results demonstrating that Judy Wicker was raped by someone who was previously convicted of a violent crime, and that this person fits the description of her husband's murderer that she provided during her own trial. Indeed,
See Commonwealth of Massachusetts v. Rosier, 425 Mass. 807, 812 685 N.E.2d 739, 743 (1997) (noting that Short Tandem Repeat DNA testing was not commercially available until "several years" after 1991).
The Honorable Bob Riley
Short Tandem Repeat DNA testing can conclusively prove innocence by identifying the true perpetrator in the CODIS database, even in cases where a mere exclusion could not conclusively prove innocence.4
Hairs and a Wig from JudvWicker's 1981 Buick Riviera The State recovered hairs and a wig from Judy Wicker's 1981 Buick Riviera and sent them to the State's Department of Forensics for microanalysis. Fingerprints found in the automobile were tested but did not match those of Mr. Arthur. At trial, the State's criminalist, John Kilbourn, testified that the hair samples were ''Negroid hair . . . forcibly removed." Such evidence is consistent with Judy Wicker's description at her own trial that the perpetrator was African American. DNA testing on such hair could also match the DNA profile of a person fitting this description from the COD IS database. Furthermore, although Judy Wicker testified that Mr. Arthur had disguised himself by wearing a wig, Kilbourn did not find any hair inside the wig as would be expected. DNA testing of this wig could confirm that Mr. Arthur's DNA was not found in the wig.
Judy Wicker's Clothing. The State submitted Judy Wicker's bloodstained clothing and ripped undergarment to the State's Department of Forensics, but these items were not tested for blood typing or DNA. At trial, the prosecution argued that Judy Wicker and Mr. Arthur concocted a story that she had been assaulted by an Afiican-American man who then killed Troy Wicker, but that it was actually Mr. Arthur who had assaulted her and killed her husband The fact that Judy Wicker's clothing was tom and stained with blood suggests that there was a struggle, and it is highly possible that the perpetrator left traces of DNA in the form of blood or skin cells on Judy Wicker's clothing and on her undergarment during the rape. DNA testing of such items could confirm that Judy Wicker testified truthfully when she stated that a burglar--not Mr.
Arthur-assaulted her and killed Troy Wicker.
Den Floor Vacuum Sweepings and Hairs. Vacuum sweepings from the den floor and hairs from a shoe were collected from the Wicker residence and submitted to Kilbourn. These sweepings consisted of numerous hairs and fibers, none of which matched Mr. Arthur's. Testing the hairs to detennine whether they match the other items could further demonstrate that a burglar was present in the Wicker residence on the morning of the murder.
In sum, DNA testing could demonstrate that Judy Wicker was raped by someone with a criminal record whose description is consistent with her testimony from her own trial. In other words, comparing the test reSults of the rape kit to the CODIS database could result in a match with a known offender convicted of a violent crime,
See, e.g., Fernanda Santos. DNA Testing Frees Man Imprisoned for Half His Lift. NEW YORK TIMES, Sept. 21, 2006, at B1 (Jeffrey Deskovic); Jim Yardley, Texas Inmate's Confession Slips Through the Cracks, NEW YORK TIMES, Oct. 17, 2000, at A20 (Christopher Ochoa).
"!be Honorable Bob Riley
and confirm that Judy Wicker was telling the truth when she testified that this burglar assaulted her and killed Troy Wicker.
Furthermore, DNA testing could demonstrate that the same person who raped Judy Wicker also physically assaulted her, that this person's blood was on her blouse, that his hair was found in the Wicker residence, and that this person was not Mr. Arthur. Not only can such testing exclude Mr. Arthur, redundant DNA test results can also demonstrate the same genetic profile on multiple pieces of evidence.s A match to a convicted offender profile of a person who had no reason to be in the Wicker residence on the morning of the murder would confirm that Judy Wicker testified truthfully when she stated that a burglar killed Troy Wicker. Indeed, nowhere in Judy Wicker's testimony did she allow for the possibility that two persons killed Troy Wicker.
Thus, DNA testing could provide powerful evidence of Mr. Arthur's innocence by demonstrating that the same ~ i.e. the real perpetrator, is the source of DNA on multiple pieces of evidence.
S Redundant DNA test results such as those that may be obtained here have served as the basis for numerous post-conviction DNA exonerations. See, e.g., 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 (Kenneth Wyniemko); Yarris v. County of Delaware, 465 F.3d 129, 132-33 (3d. Cir. 2006) (Nicolas Yarris).
6 . Mr. Arthur's meritorious claims relating to his innocence and the constitutional violations at his trial and sentencing have never been reviewed by any post-conviction court.
Notwithstanding his diligent efforts, Mr. Arthur was unable to access either state or federal collateral proceedings before both statutes oflimitations had run. After he was finally able to fmd pro bono counsel, in order to overcome this procedural bar, Mr. Arthur diligently tried to develop facts relating to his gateway claim of actual innocence and his tolling claims.
In connection with federal habeas proceedings, Mr. Arthur requested discovery relating to actual innocence, and sought to conduct DNA testing on the same physical evidence that is the subject of this application. The district court denied Mr. Arthur's request for DNA testing, rejected his tolling claims, and dismissed his petition as time-barred on December 4, 2002. The Eleventh Circuit affirmed and the United States Supreme Court denied certiorari on April 16, 2007. Moreover, on April 12, 2007, Mr. Arthur a filed § 1983 complaint seeking the same DNA evidence. Relying on the decisions from the habeas proceedings, the district court dismissed Mr.
Arthur's complaint on August 17, 2007 and denied his motion for reconsideration on August 30, 2007. The Attorney General will certainly argue that, like these federal courts, you should reject Mr. Arthur's request for DNA testing. Of course you are not bound by the decisions of these courts. For example, in late 2002, Governor Jeb Bush stayed the execution and ordered DNA testing in the case ofAmas Lee King, notwithstanding the Florida courts' decisions denying such testing. Governor Bush explained: "It is wholly appropriate that we delay the execution until we can determine that all potential uses of DNA testing have been completed." Kelly Benham, Death Order Delayed Again, ST. PETERSBURG TIMES, Dec. 3,2002, at lA. On behalf of Mr.
Arthur, I urge you to follow Governor Bush's example.
The Honorable Bob Riley
III. Mr. Arthur's Alibi Witness Further Supports the Need for DNA Testing
In connection with his habeas proceedings, Mr. Arthur submitted the affidavit of Ray Melson, who recalled specific details of Mr. Arthur's visit in Decatur on the morning of Troy Wicker's murder in Muscle Shoals. It is beyond dispute that if Mr.
Arthur had been with Mr. Melson that morning. he could not have killed Troy Wicker as Judy Wicker had testified. The State of Alabama subsequently submitted a second affidavit by Mr. Melson claiming that he was on "some strong medication, pain and otherwise" when he signed his original affidavit and did not know when he saw Mr.
Arthur. Although Mr. Arthur's investigator submitted a detailed affidavit highlighting critical questions that could only be resolved through live testimony, Mr. Arthur's request for a hearing was denied. (Affidavit of Stephen J. Gustat, dated October 22, 2002 and attached as Exhibit B.) After the federal habeas court dismissed Mr. Arthur's petition as lBltimelyand all appeals were exhausted, counsel for Mr. Arthur was able to obtain an affidavit from Mr. Melson that finally explains the discrepancies between his first and second affidavits, and confirms that Mr. Arthur was nowhere near the Wicker residence on the morning of Troy Wicker's murder. (Affidavit of Ray Melson, dated August 22, 2007 and attached as Exhibit C.)
As set forth in his third affidavit, when representatives of the State of Alabama visited him, Mr. Melson had recently taken pain medication and told them what he thought they wanted to hear so that they would just leave him alone and allow him to feel the effects of the medication undisturbed. (Id. at' 8.) Mr. Melson felt intimidated and was aftaid to mention to the State representatives that he was on drugs. (Id. at 1 9.) Mr. Melson stopped taking pain medication in 2003 (id. at ,. 10), and today he recalls clearly Mr. Arthur's visit to Copper Mobile Homes in Decatur on the morning of the murder. That day was memorable because Mr. Melson helped deliver a double-wide trailer to the Birmingham area, which he had done only two or three times in his life, and the trailer got stuck in mud while it was being transported. (Id. at ~ 12, 13.)
Mr. Melson remembers that Mr. Arthur stopped by between 8 a.m. and 9 am. offering to help with this delivery but his help was not needed, and that there was nothing unusual about Mr. Arthur's behavior. (Id. at 115.) Mr. Melson also remembers that when he learned that Mr. Arthur had been arrested for the murder of a man in Muscle Shoals, he put ''two and two together" at the time and realized that the day of the murder was the same day that Mr. Arthur had visited Copper Mobile Homes offering to help deliver the double-wide trailer. (Id. at 1 17.) Mr. Melson-who has not seen or spoken to Mr. Arthur in the past 25 years-has no reason to lie. (Id. at' 19.)
Consistent with Judy Wicker's testimony at her own trial, Mr. Melson's third affidavit demonstrates that Mr. Arthur was nowhere near the Wicker residence on the moming of Troy Wicker's murder. In light of this evidence of Mr. Arthur's innocence, DNA test results could confirm this critical fact and therefore such testing would not be speculative.
The Honorable Bob Riley
As the Attorney General of Alabama has emphasized, "there can be little doubt that the Governor can. in his discretion, order that DNA testing be performed in connection with a commutation determination. . . . If the Governor wants DNA testing, the Governor gets DNA testing.,,7 On behalf of Mr. Arthur, I urge you to exercise your broad discretion and grant him access to the requested physical evidence and a stay to conduct DNA testing. As counsel for Mr. Arthur, we are willing to bear all costs for the testing at a private, nationally credited DNA laboratory, including any fees to expedite the process.
Because the 'lJenalty of death is qualitatively differenf' from even a life sentence, "there is a corresponding difference in the need for reliabili~ in the determination that death is the appropriate punisbment in a specific case." If the State of Alabama is certain that Mr. Arthur committed the crime for which he is sentenced to die, then there is no reason to deny Mr. Arthur's request for DNA testing. Granting Mr. Arthur's request would add legitimacy to the ultimate punishment that the State seeks to impose on him by resolving any doubt regarding Mr. Arthur's culpability.
Please let me know if you have any questions or would like any additional information. I can be reached at (212) 558-4647. I would be available to meet with you personally to discuss this matter and look forward to hearing from you promptly.
Thank you in advance for your consideration. .
cc: Ms. Olga Akselrod (Innocence Project)
Mr. Troy King (Attorney General of Alabama)
Mr. Scott Rouse (Deputy Legal Advisor, Office of the Governor)
Defendants' Reply to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss at 17, 18, dated July 2,2007, Arthurv. King, 07-cv-319 (M.D. Ala.).
Woodson v. North Carolina, 428 U.S. 280, 305 (1976).

Professor Philip Alston, United Nations Human Rights Council Special Rapporteur on extrajudicial, summary or arbitrary executions
New York, 30 June 2008
I spent two weeks (June 16-30) visiting the United States at the invitation of the Government and met with federal and state officials, judges, civil society groups, and victims and witnesses in Washington DC, New York City, Montgomery (Alabama), and Austin (Texas).
I am grateful to the U.S. Government for its cooperation and for having facilitated meetings with officials from the Departments of State, Justice, Defense and Homeland Security, as well as with officials in Alabama and Texas. The US Government's willingness to invite me and to engage in a constructive dialogue sends an important message.
Although the title of my mandate may seem complex, it should be simply understood as including any killing which violates international human rights or humanitarian law. This may include unlawful killings by the police, deaths in custody, killings of civilians in armed conflict in violation of humanitarian law, and patterns of killings by private individuals which are not adequately investigated and prosecuted by the authorities. My mandate is not abolitionist, but the death penalty falls within it as regards due process guarantees, its limitation to the most serious crimes and its prolnbition for juvenile offenders and the mentally ill.
If there is a single theme that emerges from my visit it is the need for greater transparency in relation to a number of issues of major importance. In most instances, neither laws nor procedures for addressing any potentially unlawful killings are lacking. And, for the most part, data is gathered systematically and responsibly. But in too many cases it is extremely difficult, if not impossible, to gain access to that information. Instead, procedural and other impediments are firmly ensconced in order to thwart those who seek to monitor the accountability of public authorities. This reality is entirely inconsistent with the stated commitments of the Government and my hope is that the necessary steps can be taken to remove the obstacles and ensure full respect for human rights.
In different contexts, I was frequently told by Government officials that although they were unable to answer my specific questions, I should rest assured that there was accountability. Whether or not it does in fact exist, this "private" or "internal" accountability cannot take the place of genuine, public accountability.
A Government open and accountable to its people is a foundational premise of a democratic state.
The present statement identifies some, but not all, of the issues and recommendations to be addressed in my final report.
Death penalty
In view of the very limited time available to ine, I chose to visit Alabama because it has the highest per capita rate of executions in the US, and Texas because it has the largest number of executions and prisoners on death row.
Executing the innocent: a risk that cannot be ignored
Since 1973, 129 individuals waiting on death row have been exonerated across the US. This number continues to grow. Indeed, while I was in Texas, the conviction of yet another person on death row was overturned by the Court of Criminal Appeals. While in this case DNA testing ultimately prevented the execution of an innocent man, others may have been less fortunate. In Texas, I met a range of officials and others who acknowledged that innocent people might have been executed. The problem is that a criminal justice system with recognized flaws that the government refuses to address will always be capable of mistakes. While some officials seem to consider due process rights as mere "technicalities," the growing number of exonerations underscores that they are in fact indispensable safeguards against injustice in cases in which an error can be fataL At present, a great deal of time and energy is spent trying to expedite executions. A better priority would be to analyze where the criminal justice system is failing in capital cases and why innocent people are being sentenced to death.
In Texas, there is at least significant recognition that reforms are needed. In Alabama, the situation remains highly problematic. Government officials seem strikingly indifferent to the risk of executing innocent people and have a range of standard responses, most of which are characterized by a refusal to engage with the facts. The reality is that the system is simply not designed to turn up cases of innocence, however compelling they might be. It is entirely possible that Alabama has already executed innocent people, but officials would rather deny than confront flaws in the criminal justice system.
Alabama's systematic rejection of concerns that basic international standards are being violated sits oddly alongside the Government's determined and successful bid to attract foreign investment from the European Union in particular. Indeed, Alabama's largest export market in 2007 was Germany. It would thus be appropriate for Alabama to engage in a dialogue on due process concerns in its death penalty with the international community.
Given the rising number of innocent people being exonerated nationwide, both Alabama and Texas need to ask what might be wrong with their criminal justice systems and how the problems might be fixed. I recommend a three-prong strategy: (1) problems such as judicial independence and the absence of an adequate right to counsel should be addressed immediately; (2) systematic inquiries into the workings of the criminal justice systems should be undertaken to identify needed reforms; and (3) the federal courts should be able to review all substantive claims of injustice in capital cases. I turn now to consider each of these.
Alabama and Texas both have partisan elections for judges. It is not for me to evaluate the compatibility of requirements for judicial independence with a system of multi-million dollar campaigns for judicial elections every four years. But if the outcome of such a system in practice is to jeopardize the right of capital defendants to a fair and just trial and appeal there is clearly a need to consider changes. Many of those with whom I spoke suggested strongly that judges in both states consider themselves to be under popular pressure to impose and uphold death sentences whenever possible and that decisions to the contrary would lead to electoral defeat. Yet the role of the judiciary is to ensure that justice is done in individual cases and to avoid the execution of innocent persons. It is not to ensure that the popular will prevails over other considerations. Too often, under the existing electoral system, the death penalty ends up being treated as a political rather than a legal issue.
This problem of politicizing death sentences is illustrated by Alabama's law permitting judges to override the considered opinion of the jury in sentencing. Even if a jury unanimously decides to sentence a defendant to life in prison, the judge can instead impose a death sentence. When judges override jury verdicts, it is nearly always to increase the sentence to death rather than to decrease it to life, and a significant proportion of those on death row would not be there if jury verdicts were respected. Given the key role of the jury in American justice, it is difficult to justify giving officials who will be held to account for their stance on the death penalty every four years the power to substitute their own individual opinions for those of the 12 member jury. Given concerns about possible innocence and the irreversible nature of the death penalty, Alabama should relieve judges of this invidious role by repealing the law permitting judicial override. Instead, juries should be permitted to play their historical role of protecting individual rights.
In both Alabama and Texas a surprisingly broad range of people in and out of government acknowledged the inadequacy of existing programs for providing criminal defense lawyers to those who cannot afford to hire their own. It is clear that major reforms would be required if the right to counsel is to be taken seriously. Yet, in both states, money-saving half-measures are being discussed when what is needed are state-wide, well-funded, independent public defender services. The system recently setup in the Texas panhandle to provide capital defense in scores of counties is a positive first step in this direction.
There is a clear onus on states to systematically evaluate the workings of their criminal justice systems to ensure that the death penalty is not imposed unjustly. In Texas, a particularly promising approach would be to establish, as some have proposed, an Innocence Commission designed to systematically assess why people have been wrongly convicted in particular cases and then apply these lessons by making recommendations for reforming the criminal justice system. Alabama could draw on the in-depth analysis of the issues produced by the American Bar Association (ABA). While various officials dismissed the ABA as being biased, they generally acknowledged that those who conducted the study were serious lawyers, and none had undertaken a thorough analysis of the report. Given the seriousness of the problems
identified, and the reluctance to undertake any alternative in-depth study, it is incumbent upon the authorities to formally respond to the ABA's fmdings and recommendations. Giving reasons for accepting or rejecting specific recommendations would indicate a serious concern to respond to alleged injustices.
The role of the federal courts in reviewing death sentences imposed by state courts has been curtailed by federal legislation designed to "expedite" such cases. As initially enacted, this legislation permitted states to opt-in to expedited review, if the state provided counsel for indigent death row inmates in postconviction cases. The federal courts had responsibility to determine whether states qualified, and they found that few states met statutory requirements for the provision of counsel. The appropriate response to this would have been to improve state systems for indigent defense. Instead, Congress amended the law to permit the Department of Justice to adopt regulations under which it, rather than the Courts, would certifY whether state indigent defense systems met this standard. The regulations initially drafted by DOl were grossly inadequate for this purpose. The fmal regulations will be promulgated soon, but the approach of DOl officials with whom I spoke regarding this issue leaves me far from optimistic that they will prove adequate either. Congress should take seriously the extent to which many state criminal justice systems fail to adequately protect constitutional rights in capital cases, rather than trying to find an expeditious shortcut.
Instead of being forced to dismiss cases due to procedural technicalities, the federal courts can and should provide a critical back-stop to prevent injustice. The best way forward would be for Congress to enact legislation permitting federal courts to review all issues in death penalty cases on the merits, with appropriate exceptions, such as where a defendant attempts to deliberately bypass state court procedures.
Racism and the death penalty
Studies across the country suggest racial disparities in the application of the death penalty. In particular, many studies suggest that a defendant is more likely to receive the death penalty when the victim is white, and some studies also suggest that a defendant is more likely to receive the death penalty if he is African American. When I raised this issue with federal and state government officials, I was met with indifference or flat denial. Some officials had not read any specific reports on race disparity and showed little concern for the issue. Others conceded racial disparity as a fact, but invoked a handful of studies suggesting that this was not caused by racial bias. Thus I was told that the overrepresentation of African Americans among those sentenced to death as opposed to life without parole was related to racial disparities in criminality, or to the overrepresentation of African Americans in the prison population generally. Many officials wroteoff the results of studies showing racial disparity as being biased because they were written by researchers with anti-death penalty views. Given what is at stake, there is a need for governments at both the state and federal levels to revisit systematically the concerns about continuing racial disparities.
Consular notification
An issue of particular importance in Texas is how to handle the many cases in which foreign nationals have been sentenced to death without having been given the opportunity to contact their national consulates as required by the Vienna Convention on Consular Relations, a treaty to which the US is a party. The US Government has acknowledged that the US has a legal obligation to provide, in accordance with the International Court of Justice's judgment in Avena, review and reconsideration of the cases of Mexican nationals on death row who were not notified of their right to consular access. But the Texas Legislature has failed to authorize state courts to provide this review, and the US Congress has similarly failed to authorize federal courts to do so. In both cases, all that would be required is legislation permitting courts to review claims related to consular notification even if these claims would otherwise be dismissed for not having been raised in a timely fashion.
The very simplicity of the available solutions makes it all the more disturbing that nothing has been done. In my discussions with Texas officials, reliance was placed upon the fact that the US Supreme Court (in the Medellin case) had found that the federal government could not force Texas to abide by these legal obligations. This is true, but it fails to address the real issue. It is a bedrock principle of international law that when a country takes on international legal obligations those bind the entire state apparatus, whether or not it is organized as a federal system. There are many federal systems around the world and they have all devised means to ensure that treaties, whether dealing with trade, investment, diplomatic immunities, the environment, or human rights bind the entire state as such, including its constituent parts. Why would foreign corporations, relying in part upon treaty protections, invest in a state such as Alabama or Texas if
they risked being told that the treaty bound only the US government but was meaningless at the state level?
TIlls is where the Medellin standoff leaves things.
The provision of consular rights seems to be treated as an issue affecting only those foreign nationals currently on death row in Texas. But precisely the same issue applies to any American who travels to another country. One legislator with whom I spoke noted that when he travels overseas he is hugely reassured by the fact that he would have the right of access to the US consulate if he was arrested. The present refusal by Texas to provide review undermines the role of the US in the international system, and threatens the reciprocity between states with respect to the rights of each others' nationals. Texas, by refusing to provide review of the foreign nationals' cases, is putting the US in breach of its international legal obligations out of what appears to be pure stubbornness. Putting pride ahead of justice and commonsense is rarely a good strategy.
Deaths in immigration detention facilities
There have been at least 74 deaths in immigration detention facilities since 2003. I received credible reports from a variety of sources of denials of necessary care, long delays in the provision of treatment, and the provision of inadequate care and incorrect medication. The immigration detention facilities, managed by Immigration and Customs Enforcement (ICE), an arm of the Department of Homeland Security (DHS), hold immigrants with ongoing immigration legal proceedings, or awaiting removal from the US in some 365 facilities around the country.
The standards and procedures for medical care in all of these facilities are set by ICE. They are designed primarily to provide emergency care and generally exclude other care unless it is judged necessary for the detainee to remain healthy enough for deportation. Specialty care and testing believed necessary by the detainee's on-site doctor must be pre-approved by the Division of Immigration Health Services (DIHS) in Washington, DC. Reliable reports indicate that, in practice, an often very restrictive intetpretation is applied. In their defense, DIHS and ICE explained to me that truly emergency care is formally provided at the discretion of medical personnel at each detention center without prior authorization from DIHS. But it is still necessary to obtain DIHS authorization in order for the care provider to get reimbursed for such emergency care. Denials of such requests have a chilling effect on decisions taken subsequently about whether to go ahead without authorization.
In addition, the ICE standards are merely internal guidelines rather than legal regulations. TIlls has insulated ICE policy-making from the external oversight provided by the normal regulatory process and limits the legal remedies available to detainees when the medical care provided is deficient. ICE reassured me that there are internal grievance procedures, but detainees and their lawyers regularly report no or delayed responses to complaints, and complaint hotline telephones that simply don't work. The DHS should promulgate legally enforceable administrative regulations, and these should be consistent with international standards on the provision of medical care in detention facilities.
With respect to the investigation of detention center conditions, I met with the DHS Inspector General (IG).
The IG role is an important one and a number of valuable reports have been prepared. But the system is incomplete by virtue of the fact that internal and external accountability functions are more or less combined. The law enforcement officers who investigate abuses by DHS personnel themselves report to the IG. Existing IG peer review arrangements seem most unlikely to act as an appropriate external check on the performance of the IG in relation to sensitive and problematic cases.
ICE has no legal reporting requirements when a death occurs in ICE custody. This has resulted in a clear failure of transparency by ICE in relation to deaths in custody. Both civil society groups and Congressional staff members told me that for years they were unable to obtain any information at all on the numbers of deaths in ICE custody. ICE's recent public reporting of the number of deaths, and their voluntary undertaking to report future deaths is encouraging, but insufficient. ICE should be required to promptly and publicly report all deaths in custody, and these deaths should be fully investigated.
Due process concerns in death penalty cases under the Military Commissions Act
To date, six "alien unlawful enemy combatants" detained at Guantinamo Bay, Cuba, have been charged with capital offences under the Military Commissions Act (MCA). They are being tried before military commissions on war crimes charges, and if convicted, face the death penalty.
The US has an obligation to provide fair trials which afford all essential judicial guarantees. The fundamental principles of a fair trial may never be derogated from. But the text of the MCA, which provides the rules which govern the trials, and the experiences of those with whom I met during my mission involved in the trial process to date, indicate clearly that these trials utterly fail to meet the basic due process standards required for a fair trial under international humanitarian and human rights law.
Access to counsel has been severely limited. Second and third hand hearsay evidence can be used. The prosecution can withhold evidence from the accused. The opportunity for the defense to obtain witnesses is restrictive. It has been publicly stated that at least one of those facing trial was subjected to "waterboarding", and other forms of coercion during interrogations have been widely acknowledged. Yet the MCA does not prohibit all coerced statements from being admitted into evidence. The commissions are not sufficiently independent from the executive. This incomplete list of fundamental due process flaws suffices to demonstrate that the current procedures constitute a gross violation of the right to a fair trial. It would violate international law to execute someone following this kind of proceeding.
Deaths in Guantanamo Bay, Cuba
There have been five reported deaths of detainees at Guantanamo Bay in 2006-07. Four were classified as suicides, and one was attributed to cancer. In the custodial environment, a state has a heightened duty and capacity to ensure and respect the right to life. As a result, there is a rebuttable presumption of state responsibility - whether through acts of commission or omission - in cases of custodial death. The state has an obligation to investigate the deaths, and publicly report on the findings and the evidence upon which the findings are based. But the Department of Defense (DOD) has provided little public information about the causes or circumstance of any of these deaths. While it has been reported that autopsies were conducted in each case, the results have not been made public - or even provided to the families of the deceased men. It was also reported that the Naval Criminal Investigative Services (NCIS) is conducting investigations into each of the deaths. But over two years since the first deaths, no results of investigations have been released. I spoke with civil society groups who have been attempting during that time to obtain the results, but to no avail. The results of autopsies conducted should be released to the families of the deceased men, and the results of any NelS investigations should be made public.
Ensuring respect for human rights and the rule of law in US military operations in Afghanistan and Iraq
All governments have an obligation to effectively investigate, prosecute, and punish violations of the right to life in situations of armed conflict. It is important, of course, to acknowledge the unique characteristics of armed conflict. The rules governing the use of lethal force are different than in ordinary situations, and intentional killing is often permitted. But, while different laws apply, the importance of ensuring that these laws are followed remains. In other words, the rule of law must be upheld in war as in peace. Some aspects of the rule of law have been taken seriously during US military operations. Thus, after visiting Mghanistan last month, I noted that I had seen no evidence that the international forces present in Afghanistan - including those of the US - were committing widespread intentional killings in violation of human rights or humanitarian law. In addition, the Government has implemented programs for providing compensation to civilian victims of US military operations. While these programs should be improved, the US should also be proud of the leadership that it has shown in this area.
Tracking civilian casualties
The military has repeatedly stated that it does not systematically compile statistics on civilian casualties that occur during its operations in Mghanistan or Iraq. This was confirmed in my discussions with officials at the Department of Defense. The purported reason for not doing so is that "body counts" are not relevant either to evaluating the effectiveness or legality of military operations. It is true that a simple "body count" is not very useful. However, systematically tracking how different kinds of operations result in different levels of civilian casualties is critical if the US is serious about minimizing civilian casualties. Despite this general policy, the military reportedly has tracked the civilian casualties that occur at checkpoints in Iraq when soldiers fire at civilians they mistakenly believe to be suicide bombers or other attackers. My understanding is that these monitoring efforts resulted in changes to procedures that saved lives. This kind of effort to track, analyze, and learn from the consequences of military operations on civilians should be
made routine not exceptionaL The numbers and trends found should be reported publicly so as to strengthen external accountability.
Improving the transparency of the military justice system
The troublingly opaque character of the US military justice system is well illustrated by a case described to me by witnesses and investigators when I visited Mghanistan. On March 4, 2007 US Marines responded to a suicide attack on their convoy in which one soldier was wounded by killing some 19 persons and wounding many others in the space of a ten mile retreat. I asked the regional commander in Mghanistan what follow-up had occurred. He could not tell me and explained that his unit had just arrived in Mghanistan and that accountability for incidents involving the previous unit was its responsibility and that it had taken all the relevant files when it left the country. In fact, a Court of Inquiry into the incident proceeded in North Carolina.
Shortly after I returned from Afghanistan, the US military released a short statement on this incident indicating that the commander of U.S. Marine Corps Forces Central Command had conducted a "thorough review of the report of a Court of Inquiry" and had determined that the soldiers had "acted appropriately and in accordance with the rules of engagement and tactics, techniques and procedures in place at the time in response to a complex attack". Unsurprisingly, this conc1usory and unsubstantiated response to such a serious incident was met with dismay in Mghanistan. Afghans - and Americans - have a right to ask on what basis this conclusion was reached. But all of the documents produced by the Court of Inquiry have remained classified. The record of proceedings has not been released. The 12,000 page report of the Court of Inquiry including recommendations and factual findings has not been released. The Government has even disregarded the existing regulation stating that the convening authority should ensure that an executive summary of the report be made public in order to inform Government officials, the legislative branch, the media, and the next of kin of the victims of the investigation's fmdings and recommendations.
Whether or not the decision not to initiate courts-martial was justified, the manner in which the military justice system has operated in this case is entirely inconsistent with principles of public accountability and transparency.
Unfortunately, this particular incident is only one of many in which the military justice system has failed to provide the appearance - and, perhaps, the reality - of justice. The system is opaque, making it remarkably difficult for the US public, victims, or even commanders to obtain up-to-date information on the status of cases, the schedule of upcoming hearings, or even judgments and pleadings which are theoretically public. This lack of transparency is, in part, a side-effect of the decentralized character of the system, in which commanders around the world are given the authority to conduct preliminary investigations and act as "convening authorities" to initiate courts-martial.
If there is the will to do so, this problem can be solved quickly and easily. Reporting requirements and a central office, or registry, could be added to the existing system at little cost, and this would markedly improve accountability and reduce the sense among Afghan and Iraqi civilians, and others around the world, that US forces operate with impunity.
Improving the effectiveness of the military justice system
While the US military justice system has achieved a significant number of convictions, some sentences appear too light for the crime committed, and senior officers have not been held to account in the same way that enlisted men have been. The requirement that a sentence be proportionate to the gravity of the offence is one that I have raised with the Government and will explore further in my report.
One possible response to some of these distortions would be to explore the creation of a position of Director of Military Prosecutions. Rather than permitting commanding officers whether to prosecute their own soldiers, this official would make those decisions. This has been done in recent years in various states, including Australia, Canada, Ireland, New Zealand and the United Kingdom. The goal is to ensure independent decisions as to prosecution and to distance the convening authorities from decisions in which they and the troops serving under them can be considered to have a direct and potentially conflicting interest.
With respect to "command responsibility", it is notable that this is absent from both the Uniform Code of Military Justice (UCMJ) and the War Crimes Act as a basis for criminal liability. This concept has been
systematically recognized since the trials which followed the Second World War. It reflects the importance of hierarchy and discipline within the military as well as the essential role of the military commander in preventing and punishing war crimes. Inaction by a commander in response to crimes committed by his men will only result in impunity and more crimes being committed.
While the US military prosecutes commanders under the UCMJ for "dereliction of duty" this does not adequately reflect the responsibility the commander has for the actions of the men under his orders, nor does it result in sentences proportionate to the gravity of the offences committed. The criminal liability of commanders for having failed to take the necessary steps to prevent or punish the crimes committed by their subordinates should therefore be codified in the UCMJ and the War Crimes Act.
Ensuring accountability for killings by private security contractors and civilian Government employees in Afghanistan and Iraq
The existence of a zone of de facto impunity for killings by private contractors operating in Iraq and elsewhere has been tolerated for far too long. Government officials with whom I met acknowledged this lack of accountability, and it now seems to be recognized that this vacuum is neither legally nor ethically defensible - nor politically sustainable. Indeed, many of the contractors themselves now accept the need for legal regulation and accountability. It is also encouraging that the US has participated in efforts to clarif'y the relevant international standards as part of the Swiss Initiative on Private Military and Security Companies.
Congress has adopted a series of statutes expanding and clarif'ying jurisdiction over offences committed by contractors and civilian Government employees operating in areas of armed conflict. To date, however, these legislative initiatives have been largely reactive to specific incidents such as the abuses at Abu Ghraib and the shooting incident at Nisoor Square. The result is legislation that closes particular jurisdictional gaps but leaves others. Congress should adopt legislation that comprehensively provides criminal jurisdiction over contractors and civilian employees. I was briefed by a number of Congressional staffers on ongoing efforts to do exactly this. There was, however, also talk of including a so-called "intelligence carve-out" that would provide impunity for contractors and employees working for US intelligence agencies. This would be wholly inappropriate.
However, the principle problem today is that US prosecutors have failed to use the laws already on the books to prosecute contractors. The Department of Justice (DOJ) is responsible for prosecuting private security contractors, civilian government employees, and US soldiers for violations of a range of federal statutes, including the Military Extraterritorial Jurisdiction Act (MEJA), the Special Maritime Territorial Jurisdiction Act (SMTJ), and the War Crimes Act. But the Department has failed miserably in these areas.
Its efforts are coordinated by two bodies. A task force based at the US Attorney's Office for the Eastern District of Virginia deals with cases of detainee abuse, including those resulting in death. The Domestic Security Section (DSS) of DOl's Criminal Division coordinates the prosecution of other cases involving contractors, such as .unlawful shootings committed while protecting convoys. The first of these bodies recently stated that it had been referred 24 cases of alleged detainee abuse and that, of these, it had declined to exercise jurisdiction in 22. When I spoke with DSS representatives about the other set of cases, they acknowledged the lack of convictions but refused to provide even ballpark statistics on the allegations received. The lamentable bottom line is that the DOJ has achieved a conviction in only one case involving a contractor in Mghanistan or Iraq.
One well-informed source succinctly described the situation: "The DOJ has been A WOL in response to these incidents". This must change. The keys are political and prosecutorial will. On the latter issue, one problem is that cases involving contractors are ultimately handled by US Attorneys offices around the country. The incentives of these prosecutors to prioritize cases that are difficult and expensive to investigate have proven inadequate, especially when they are expected to do so with their ordinary operating budget. One important institutional reform would be to establish an office within DOJ dedicated solely to prosecuting cases involving crimes committed by contractors, civilian Government employees, and soldiers in situations of armed conflict, and to provide appropriate funding.
Building on existing arrangements for providing reparations for deaths of civilians
The Government has implemented a number of programs for providing reparations, or compensation, to civilian victims of US military operations. In important ways, these programs provide a model to be emulated. Victims or their families receive compensation before any determination has been made that US soldiers engaged in any unlawful act and in many cases in which the death or injury resulted from what was almost certainly a completely lawful attack. The US is a leader in this area and should continue to build on its achievements by increasing funding, proactively seeking out victims and their families rather than waiting to receive requests, and by regularizing and better coordinating existing programs.
Preliminary recommendations
Domestic US issues
Due process in death penalty cases should be improved
· Alabama and Texas should establish well-funded, state-wide public defender services. Oversight of these should be independent of the executive and judicial branches.
· In light of current flaws in state criminal justice systems and the finality of death, the US Congress should enact legislation permitting federal courts to review all issues in death penalty post-conviction review cases on the merits.
· Executions of foreign nationals who have claims related to consular notification requirements under international law should be suspended until legislation is enacted that authorizes review of such claims on the merits.
· Texas should establish a commission to review cases in which persons convicted of crimes have been subsequently exonerated, analyze the reasons for these wrongful convictions, and make recommendations for reforms to the criminal justice system to prevent.future mistakes.
· Alabama should evaluate and respond in detail to the findings and recommendations of the American Bar Association report on the implementation of the death penalty in that state.
· Reforms to the system of partisan elections for judges should be considered in order to ensure that capital case defendants receive a fair trial and appeals process.
Medical care provided in immigration detention should be improved
· All deaths in iQunigration detention 'should be promptly and publicly reported and investigated.
· The Department of Homeland Security should promulgate appropriate regulations through the normal administrative rulemaking process, and these should be consistent with international standards on the provision of medical care in detention facilities.
International military operations and "war on terror" issues
Trials of GuantOnamo Bay detainees should respect due process standards
Current proceedings against Guantanamo Bay detainees under the Military Commissions Act should be discontinued. All trials should respect due process standards under international human rights and humanitarian law.
Investigations and autopsy results into the deaths of persons at Guantanamo Bay should be publicly released.
The transparency of the military justice system should be improved with institutional reforms
· Central office (registry). A central office, or "registry", should be established in the Department of Defense to maintain a docket and track cases from investigation through final disposition.
· Docket. All convening authorities under the UCMJ should be required to promptly provide the time, date, and location of all upcoming hearings to the registry, and a centralized, public, web-accessible docket should be maintained.
Database for tracking cases. All convening authorities should also be required to promptly provide copies of the findings of formal and informal investigations, rulings, pleadings, transcripts of
testimony, and exhibits to the registry. The registry should maintain a database of this information which would permit access to each individual document, the tracking of particular cases as they move through the system, and the compilation of statistical information.
· To improve internal oversight, commanders should have immediate access to all information in the database concerning their areas of responsibility.
· To improve transparency and public accountability, the database should be made publicly accessible on a web site insofar as consistent with legal requirements related to national security and individual privacy. This would mean that the public would be able to immediately access some documents (such as judgments and pleadings) as well as up-to-date statistical information on investigations and courtsmartial. Other documents should be continually evaluated and made public as appropriate, whether in their entirety or redacted. (The registry should initiate this process regardless of whether it has received any request under the Freedom of Information Act (FOIA).)
Comprehensive criminal jurisdiction over offences that occur in areas of armed conflict should be ensured
· Congress should adopt legislation that comprehensively provides criminal jurisdiction over contractors and civilian employees, including those working for the intelligence agencies.
· The concept of "command responsibility" as a basis for criminal liability should be codified in both the Uniform Code of Military Justice (UCMJ) and the War Crimes Act.
· Consideration should be given to establishing a Director of Military Prosecutions rather than leaving commanding officers to decide whether to prosecute their own troops.
· An office dedicated to the enforcement of statutes providing civilian jurisdiction over unlawful killings by contractors, civilian Government employees, and soldiers in areas of armed conflict should be established within the Department of Justice (D01). This should receive the resources and investigative support necessary to handle these cases. The DOJ should promptly make public statistical information on the status of these cases, disaggregated by the kind, year, and country of alleged offence.
Existing programs to provide reparations to civilian victims of armed conflict should be enhanced and regularized
The level of funding for programs to provide compensation to the families of those killed in US military operations should be increased. Such funds should be dedicated exclusively to providing compensation to civilian victims so that individual commanders need not choose between using their limited discretionary funds to compensate civilians or engage in other priorities.
In missions involving a range of international forces, such as those in Afghanistan and Iraq, the Government should urge allies to implement similar programs and should promote the development of coordination and information-sharing bodies designed to coordinate policy and help ensure that all cases are covered under one program or another.

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