I previously blogged here about Thomas Arthur, a man who is awaiting execution in Alabama. He’s on my mind again, because I’m being interviewed today by the Oprah Network for an episode on the case (because I was an expert witness on the case back in 2008). The issue now is that state officials down in Alabama want to move quickly toward execution, but won’t allow Mr. Arthur the chance to exhaust all possible DNA testing avenues to prove his possible innocence.
The perpetrator in this case wore a wig that was later recovered. Years later, someone else confessed under oath to wearing the wig and committing the murder. The State says the third-party’s confession is bogus and was orchestrated by Mr. Arthur. That may very well be true. Or it may not. No one, of course, really knows but Mr. Arthur and the confessor. But a DNA test result finding the confessor’s DNA in the wig would prove the confession to be accurate and reliable. And it’s not like DNA has never proven a prosecutor to be dead wrong.
The State submitted the wig to nuclear STR testing in its own lab, and it failed to find a DNA profile. But anyone who does this type of work knows that private labs, which used more sensitive and advanced forms of DNA testing like mini-STR, frequently find DNA profiles when the state labs can’t. Just ask my client Raymond Towler. The State of Ohio in his case claimed for years it could not find any sperm or male DNA on the child rape victim’s panties. We sent the same piece of evidence to a commercial lab, which found sperm galore and developed a DNA profile that sprung Mr. Towler from prison after 29 years. I’ll never forget the call with one of the prosecutors after we got the exonerative results, wherein she expressed amazement that the commercial lab found something that the State lab had not. I wanted to say, “Are you kidding me?, this is the rule rather than the exception.”
I’m not trying to knock state labs or the good people who work for them. They are underfunded and overworked and have smart and hardworking people doing the best they can (like our state labs in Ohio, who are staffed by scientists I know and trust). But the simple fact that commercial, private labs usually have more sensitive and up-to-date technology and can often get DNA results that state labs can’t is a given to anyone in this line of work. The fact that Alabama turns a blind eye to this phenomenon, and wants to execute Arthur without seeing what a private, commercial lab can add to the equation, is egregious.
This editorial from the Atlantic says it all:
Another month, another man on death row, another excruciating case that illustrates just some of the ways in which America’s death penalty regime is unconstitutionally broken. This time, the venue is Alabama. This time, the murder that generated the sentence took place 30 years ago. And this time, there is an execution date of March 29, 2012, for Thomas Arthur, a man who has always maintained his innocence. He also has the unwelcome distinction of being one of the few prisoners in the DNA-testing era to be this close to capital punishment after someone else confessed under oath to the crime.
Late last month, I profiled the wobbly capital conviction against Troy Noling in Ohio and there are remarkable similarities between it and the Arthur case. Both involve white defendants. Both include contentions of innocence and allegations of bad lawyering at trial. Both include a lack of physical evidence linking the defendants to the crime. Both include crucial witness testimony that borders the farcical. And both include state officials reluctant to permit sophisticated DNA testing that might definitively answer questions about whether the defendants committed the murders they will die for.
Arthur’s attorneys are even willing to pay for that testing, the few thousand bucks it would be, and the testing could be completed by the execution date. It is here where prosecutors and judges lose me when they prioritize “finality” in capital punishment cases at the expense of “accuracy.” It would cost Alabama nothing to let Arthur’s lawyers do the testing. And it might solve a case that already has cost the state millions of dollars. Instead, Alabama wants to finally solve its Arthur problem by executing him. No matter how the new DNA test could come out, the state is more interested in defending its dubious conviction.
THE TRIALS OF THOMAS ARTHUR
Some of this has been litigated — over and over again — at both the state and federal level (the back story alone raises important constitutional concerns). What’s important today, however, is that Alabama now seems to have based its entire case against Arthur upon the testimony of Judy Wicker, Troy’s wife, who said at the time of the murder that she had been raped by a stranger. Over and over again state investigators asked her if Thomas Arthur was involved in the crime. And over and over again she said no. So what happened?
What happened was that Judy Wicker was lying. Turns out she had hired someone to murder her husband — and got caught doing so! Several months after her husband’s death, Wicker was convicted of murder and sentenced to life in prison. A few years later, however, she cut a deal with prosecutors. In exchange for a recommended early release from prison, she would change her testimony and accuse Arthur of the crime. And that’s what happened. Wicker’s testimony secured Arthur’s third and final conviction. And this time, for over 20 years now, all of the state and federal courts that have reviewed the case have endorsed that result.
THE “OTHER MAN”
Were this all to the story it would be bad enough. But in 2008 things got worse. A man named Bobby Ray Gilbert confessed under oath to murdering Troy Wicker. In a sworn affidavit, Gilbert said he started an affair with Judy Wicker after they met at a bar and soon agreed that he would kill Troy Wicker, whom Judy Wicker claimed was an “abusive” husband. They agreed, Gilbert said decades later on paper, that he would wear an “Afro wig” and dark make-up as a disguise. After he shot Troy Wicker, Gilbert wrote, he and Judy Wicker had unprotected sex, after which she asked Gilbert to “beat her up” so it would look like rape.
Citing Gilbert’s detailed affidavit, here’s how Arthur’s pro bono lawyers, who work at the venerable law firm Sullivan & Cromwell, described what happened next: “After the murder, Gilbert drove Wicker’s car back to the trade school parking lot to meet his cousin, still wearing the wig and make-up. He left Wicker’s car in the parking lot. Police later recovered her car, with an ‘Afro wig’ inside it, in the parking lot of the Northwest Alabama State Junior College” (citations omitted by me). This is the same wig that Arthur’s attorneys want to have DNA tested anew for a link that could scientifically substantiate Gilbert’s confession.
Why did Gilbert wait over 25 years to come forward with his story? It’s an important question. Arthur’s attorneys phrase the answer this way: “Gilbert explained that he did not come forward with his confession earlier because he feared receiving the death penalty, and only confessed after the United States Supreme Court ruled that a minor at the time of the crime could not receive the death penalty.” Gilbert is referring here to the Court’s March 2005 5-4 decision in Roper v. Simmons, which held that the execution of juvenile murderers — under 18 when they killed — violated the “cruel and unusual punishment clause” of the 8th Amendment.
For Arthur, Gilbert’s confession came just in time. The Alabama Supreme Court stayed his 2008 execution date and he was given a hearing and the opportunity to undertake DNA testing on key evidence in the case. Nothing linked Arthur (or Gilbert, for that matter) to any of the evidence tested, but one key item was missing from the original trial list: Judy Wicker’s rape kit. Evidently that kit, which might have revealed the critical link between Wicker and Gilbert, had been missing even before Arthur’s final (1991) trial. And the wig? Alabama forensic experts found DNA on it but were nevertheless unable to develop a comparative DNA profile.
Predictably, Arthur called Gilbert to testify at the hearing — to repeat, in essence, in open court, subject to cross examination, what he had sworn to in the affidavit. This time, however, Gilbert chose to exercise his 5th Amendment right to remain silent. Arthur’s attorneys say this is because Gilbert was punished by prison officials after his confession to the Wicker murder. Alabama denies that any coercion was used against Gilbert and says that Gilbert said he would recant his confession if he got certain prison privileges back. And Judy Wicker, who had for years exonerated Arthur, did testify at the hearing. She said Gilbert was lying.
The trial judge didn’t buy Gilbert’s story one bit. In fact, she ruled that Gilbert and Arthur were attempting to “perpetuate a fraud” upon the court. And she ruled that the lack of DNA evidence linking Gilbert to the crime — it also excluded Arthur, remember — scientifically proved that Gilbert’s confession was false. It is this ruling, the latest of dozens since the Troy Wicker murder, that is still being contested by defense lawyers three years later. They are back. And they want more advanced DNA testing on the wig — testing they say wasn’t available to Alabama in 2008 and 2009.
Arthur’s lead attorney, Suhana Han, told me Sunday via email: “If new testing developed a DNA profile that matched someone other than Mr. Arthur … we would consider that evidence that Mr. Arthur didn’t wear the wig all parties agree was worn by the perpetrator.” Why the new test? Han wrote:
The test we are proposing today (mini-STR DNA typing) may be able to detect a profile where standard autosomal STR typing (the test conducted by the Alabama Dep’t of Forensic Sciences in 2009) cannot. Mini-STR DNA typing is a specialized form of autosomal STR typing that can produce a profile when standard autosomal typing fails because the pieces of DNA are too small to be picked up by that system. The mini-STR DNA typing “looks” at a smaller segment of DNA, making it more likely to get a profile out of a degraded sample.
Alabama says, in essence, that after 30 years and several execution dates for Arthur, enough is enough. To the state, the ongoing conspiracy here is not between the two alleged long-ago lovers, Gilbert and Judy Wicker, but between the two fellow inmates, Gilbert and Arthur. “[E]vidence presented at the  hearing established that while Arthur and Gilbert were both incarcerated at Holman Correctional Facility, the two men passed notes to one another so that Gilbert would have enough information about Troy Wicker’s murder to confess to it.” (And don’t forget about that prison guard Arthur shot 25 years ago during his prison escape.)
Alabama says that the failure of Gilbert’s credibility alone justified the trial judge’s conclusion that Arthur was not entitled to any relief. This meant that the judge wasn’t required to order the initial DNA testing and that no courts now should be required to authorize additional testing. The mini-STR DNA testing requested by Arthur’s attorneys, Alabama contends, is just as good as the testing performed on the wig a few years ago. And in any event, the state now says that there is no more DNA left to test on the wig after all these years. The time has come, Alabama says, to end Arthur’s litigious life on its death row.
WHY IT MATTERS
One day, some enterprising journalist will try to establish how much the state of Alabama spent over the years prosecuting Arthur, imprisoning him, and then defending the conviction and death sentence in his case. The figure must be astounding — millions upon millions of dollars — a hard cost of justice. But also an amount that makes ironic, and quite infuriating, the current fight over this last DNA test for this last bit of available evidence. You would think Alabama would be willing to pay just a bit more to perform the test. The fact that Arthur’s attorneys are willing to pay for the test makes the state’s refusal to test unconscionable.
After all these years, and all these hearings, and all these dramatic developments, you would think that Alabama itself would want to make sure, before it executes Arthur, that there isn’t any of Gilbert’s DNA on that wig. You would think after losing the rape kit decades ago that state officials would go out of their way to let Arthur’s attorneys perform their new test. This is especially so now that an execution date has been set and the testing can be completed before March 29. Prosecutors would say that such testing will only result in new delaying motions from the defense. But it could also reveal the truth.
This is an ugly case, tracking many of the failings of the human condition, and one that raises questions today about long ago testimony. Why were Alabama jurors so willing to believe Judy Wicker? How was Arthur convicted without the rape kit? The case also raises questions about where we go from here on DNA testing. Should a state ever be able to block a new DNA test if it doesn’t have to pay for it? The questions from the past tell us how arbitrary and capricious capital cases can be. The questions about the future tell us how much of a fight is left ahead over capital punishment in America.