07/23/2008
'JUDICIAL MURDER'
Despite Doubts, Alabama Man Faces Execution
By Marc Pitzke in New York
Thomas Arthur has been on death row since 1982. His execution is set for July 31 -- although strong doubts remain about his guilt. The governor of Alabama is refusing to allow DNA tests that may prove his innocence.
Twice already, Sherrie Stone has said farewell to her father for what she thought was the last time. Twice she told him "my goodbyes," as she puts it, in a prison in Atmore, Alabama. Twice she watched him shuffle off to his cell on death row, where he has been waiting to die for 26 years.
Twice his execution has been postponed, only hours beforehand.
Next week, Stone, 47, will go to Atmore a third and probably last time. An eight-hour drive from Florida, where she lives, to Alabama, where her father, Thomas Arthur, has been incarcerated for murder since 1982. On July 31, when he is finally to die by lethal injection, Stone will go through the farewell motions yet again. It doesn't get any easier.
PHOTO GALLERY: 26 YEARS ON DEATH ROW
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All the more because she believes in his innocence -- innocence her father has maintained throughout. "This is cruel and unusual punishment," Stone tells SPIEGEL ONLINE. "Cruel, unusual and frustrating. Not just for the condemned. For his family, too."
More than 3,300 inmates are currently awaiting execution in US prisons, 203 in Alabama alone. Many protest their innocence. So does Thomas Arthur. But his case is different, because there is plenty of potentially exculpatory DNA evidence. Yet the governor of Alabama, the Republican Bob Riley, is refusing to permit tests on it and is insisting that the execution be carried out on the stated date -- even though the wrong man may die.
Stone is not the only one who is dreading what she describes as a "judicial murder." Amnesty International, too, has voiced "concerns" over Arthur's execution and called the verdict -- which rests almost solely on the testimony of a questionable witness -- "highly problematic."
Even the United Nations has weighed in. In late June, Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, criticized Alabama's governor. "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," Alston wrote in a scathing report. "It is entirely possible that Alabama has already executed innocent people, but officials would rather deny than confront flaws in the criminal justice system."
All in vain. "DNA evidence will not exonerate Mr Arthur," Riley's spokeswoman Tara Hutchinson told SPIEGEL ONLINE. "Barring court intervention, the state plans to go ahead with the execution." Riley has the final say on Arthur's fate.
Arthur's lawyer Suhana Han is one of those who are still hoping for this last-minute court intervention. On Monday, Han and her colleague Jordan Razza, who are representing Arthur pro bono, filed a motion with Alabama's Supreme Court to force the DNA testing. "Time is running out," Han said to SPIEGEL ONLINE.
Not a Model Citizen
The crime happened on February 1, 1982, in Muscle Shoals, a town on Alabama's border with Tennessee. 35-year-old Troy Wicker was killed in his sleep -- by a .22-caliber shot into the right eye. Wicker's wife Judy, found bloody at the scene, testified that an African-American man had broken into the house, raped and beaten her unconscious and killed Troy.
But it was Judy Wicker herself and Arthur -- the two, it turned out, were having an affair -- who were convicted of the murder, in separate trials. Judy was sentenced to life in prison, Arthur to death by electrocution. Both maintained their innocence. Wicker also testified eight times under oath that Arthur had nothing to do with Troy's death.
And this is where things get messy. Arthur wasn't exactly a model citizen. He had been serving a life sentence for a previous murder; at the time of Wicker's killing, he was out on a supervised work release. The local paper Daily Times described him as "a smooth talker with dashing looks," but also as "a frightening person who held a grudge and was quick to engage in fights."
Arthur's verdict in the Wicker case was overturned twice -- and confirmed twice again, in new trials in 1987 and 1991. The last verdict was finally upheld by the Supreme Court of Alabama.
It was in that last trial that Judy Wicker recanted her claim of innocence and turned witness for the prosecution. She testified that she had paid Arthur for the murder to cash in her husband's life insurance. In exchange she was released from prison. The trial against Arthur, in which he defended himself, lasted three days.
"There Was no Evidence Against My Father"
His defense was made additionally difficult by the fact that Arthur had broken out of prison in 1986, shooting and injuring a prison warden in the process. On the run, he held up a bank. He was caught after six weeks.
Sherrie Stone has no pleasant memories of her father back then. "I was 15 when he was arrested for the first time," she says. "Alcohol was always a big problem." Arthur was violent, the family ended up on the streets, Stone's stepmother ran off. Stone heard of Wicker's killing while she was staying with her grandmother. "I always thought he was guilty, too. We didn't speak for 15 years."
Only later Stone began studying the case files. "When I looked I was in shock," she says. "There was no evidence against him."
Instead, plenty of evidence had been ignored. Especially DNA samples: hair, blood, Judy Wicker's rape examination, a pillow, a wig -- all preserved. Also fingerprints, phone records, witness testimony, even an alibi: Nothing was admitted at trial. Two other suspects were never questioned. One of the policemen who showed up at the crime scene was also having an affair with Judy Wicker.
"Will The Truth Come Out Before We're Executed"
Ever since, Stone has been fighting for her father. The real estate broker has started a Web site, has written petitions, has even filmed a video and put it on YouTube. Last year, she spent so much time on the case that she had to file for bankruptcy. Her husband, she says, "really doesn't know how to react to it. All he does is support me."
Arthur, too, tried to challenge the verdict. Because Alabama doesn't automatically provide public defenders, he was on his own. He worked from his cell, without access to even a law library. When the deadline for his last appeal came, he missed it.
Which is even more alarming as DNA evidence has become such a central focus in reviewing verdicts, thanks to ever improving technology. Yet seven US states still don't require DNA testing, Alabama among them.
So far, 16 US death row inmates have been exonerated by DNA evidence, according to the Innocence Project, a New York organization "to assist prisoners who could be proven innocent through DNA testing." A total of 3,014 inmates -- not all of them convicted murderers -- have written letters to the Innocence Project asking for help. Currently, the group has 279 active cases. One of them is Thomas Arthur.
"We don't have a position on whether he is guilty or innocent," said staff lawyer Jason Kreag to SPIEGEL ONLINE. "We simply think that he deserves the opportunity to have the DNA evidence tested."
The Innocence Project sent a letter to governor Riley, signed by six men wrongfully sentenced to die, who were later exonerated by DNA. "Each of us", they wrote, "sat on death row, wondering whether the truth would come out before we were executed."
Yet Riley refuses all appeals. So does his Attorney General Troy King, who is also a high-profile member of Republican John McCain's Alabama Campaign Team. "It is the appropriate time," he said in his last petition to set an execution date, "for this Court to enter an order to execute Arthur's duly-adjudicated sentence."
Twice that date was postponed at the last minute. The last time was in December, when the US Supreme Court debated the constitutionality of lethal injection. In April, when the Supreme Court ruled it constitutional, Arthur's execution date was set for July 31.
Poisonous Cocktail to Paralyze Muscles and Stop Heart
If the state prevails, Arthur's last moments will look something like this. He will be strapped to a gurney. He will be given 100 cc's of sodium pentothal, a barbiturate, followed by the rest of the poisonous cocktail -- pancuronium bromide, to induce paralysis, and potassium chloride, to stop the heart.
"I just talked to him yesterday," says Stone. "He's pissed off that they are going to kill him for something he didn't do. But he's not giving up the fight."
In case he does lose the fight, his family will have another chore to do. There are paternity issues to resolve, because it's unclear if Sherrie Stone's sister is really Arthur's daughter. "We'll take care of that," says Stone cooly, "if the execution happens." How? By DNA testing.
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