Riley won't order DNA testing

December 29, 2007

Riley won't order DNA testing By Rick Harmon Gov. Bob Riley said he will not order DNA testing for Alabama death row inmate Thomas Arthur because he does not have the power to do so. "I simply do not have the authority to order post-conviction DNA testing," Riley said during a telephone interview. Last week six men who were exonerated by DNA testing after being sentenced to death sent a petition calling on Riley to order DNA testing in Arthur's case. The 65-year-old inmate was originally scheduled to be executed Dec. 6 for the 1982 murder-for-hire slaying of Troy Wicker Jr. of Muscle Shoals. But the U.S. Supreme Court has effectively halted executions nationwide until a Kentucky case on the constitutionality of lethal injections is ruled on. Riley said he supports post-conviction DNA testing, and will support it again when legislation making it mandatory is expected to be introduced during the upcoming legislative session. But he said the way the law stands now, the power to order and have the state pay for such tests rests exclusively with the courts. The governor's legal adviser, Ken Wallis, said he has advised Riley that no governor of Alabama has the power to order such tests under the Alabama Constitution. Wallis said although governors had extensive powers 40 or 50 years ago, the current constitution gives governors only two powers relating to death penalty cases: the power to grant a reprieve by reducing a death sentence to life without parole, and the power to temporarily stay an execution. "Certainly the governor doesn't have the power to appropriate funds for something that was never contemplated under the budget," he said. "The authority to do this lies with the court system, and only the court system, unless the Legislature passes a law changing that. "In this case, Mr. Arthur has presented the request to the court, been denied, it has been appealed to a higher court, and it has been denied on appeal. In this case, all these things were addressed in motions and in trial. The evidence against him was overwhelming. A co-conspirator pled guilty a nd served time for this crime." But Eric Ferrero, director of communications for The Innocence Project, which has helped coordinate the effort to have DNA testing done in the case, is skeptical both of Arthur's guilt and of the reasons for not trying to prove or disprove it conclusively through DNA testing. Ferrero said while the constitution may not explicitly state the governor has such power, other governors, such as Florida's Jeb Bush a nd President Bush, when he was governor of Texas, have ordered DNA testing in death row cases. "Neither of them had an explicit law that said they could do that, but they did. They just felt they had the moral obligation to do that," Ferrero said. "Governors have considerable leeway in cases like this. "I think the real question to ask here is: 'Have they even tried? Has anyone even challenged their authority to do it?'" Ferrero said others involved with death penalty cases have long been bemused by how rare it is to hear governors say how powerless they are to do things -- except in death penalty cases. "Before they said they wouldn't do it because we were trying to use DNA tests as a delaying tactic, but obviously that is not the case now because it is already being delayed," he said. Ferrero believes a DNA test will exonerate Arthur. He said there is now no reason not to have the tests since DNA testing would take only about a month and his organization has agreed to pay for the testing. A DNA test for such cases usually costs in the thousands of dollars, according to Ferrero. Attempts were made to interview Arthur's attorney, Suhana Han, but she did not return phone calls Thursday or Friday. Judy Wicker, the murder victim's wife, initially told police that a black man had raped her and killed her husband. She later confessed that she was having an affair with Arthur, a work-release inmate, and paid him $10,000 to kill her spouse so she could collect $90,000 in life insurance.