Why is Alabama opposing DNA testing?

Alabama death row prisoner Thomas Arthur

Rebekah Skelton reports on a case where an Alabama man's life is at stake.

March 28, 2012

THOMAS ARTHUR has been on Alabama's death row for 30 years. He was convicted of killing Troy Wicker in 1982, but has always maintained his innocence. Recently, a federal appeals court stayed Arthur's March 29 execution date over an issue about lethal injection, though that stay could be lifted at any time.

The real question, however, remains this: Will Thomas Arthur be executed in Alabama without being allowed to have DNA testing that could prove his innocence?

There is a piece of evidence, an "Afro wig" worn by Wicker's killer as a disguise, that could be tested for Arthur's DNA. The wig has already been tested once for DNA, after another Alabama prisoner, Bobby Ray Gilbert, confessed to Wicker's murder in 2008. However, the testing was inconclusive--there wasn't a match for Gilbert or Arthur.

Ultimately, the original judge decided that Gilbert's confession wasn't credible, and despite a lack of other physical evidence tying Arthur to the crime, she recommended that the Alabama Supreme Court deny Arthur's appeal, which it did.

Now, Arthur's defense team is asking for a more advanced DNA test, called a mini-STR DNA analysis, on the wig, but Alabama's attorney general is fighting the request--arguing that this test wouldn't be any more accurate than the previous one. On top of that, there is no law guaranteeing Arthur the right to further DNA testing.

"I am outraged that there is physical evidence that, if DNA-tested, would prove my father's guilt or innocence conclusively. This testing could be done prior to his execution and would be paid for by the law firm handling his case," said Arthur's daughter Sherrie Stone. "If we are to continue executions in this country, laws must be put in place in which DNA testing must be allowed at all stages of the process. There is a chance we are executing innocent people. I know because my father is one of those people."

If the lawyers have offered to pay for the testing, what could possibly be the problem? If the test shows that Arthur's innocent, the state of Alabama can rest easy knowing they didn't condemn an innocent man to death. And if it show's he's guilty, it would only affirm what the state has already convicted him of, at no cost to them.

However, as Andrew Cohen pointed out in a February article in The Atlantic, the general consensus among prosecutors and judges is to value "finality" in cases, rather than "accuracy." Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals, outlined this position in a 2000 "Frontline" interview, saying, "We can't give new trials to everyone who establishes, after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important."

IT SHOULD be clear to anyone with a conscience that if there's even a small chance that someone might be innocent after being convicted, the court should do everything in its power to ensure they have the right person--especially when someone's life is at stake.

But lately, prosecutors have been fighting harder than ever to keep defendants from having access to post-conviction DNA testing. Hank Skinner has been on Texas death row since 1995. His case has many similarities to Arthur's, such as DNA evidence the court is denying him the right to have tested and a heavy emphasis on an eyewitness who at one point or another recanted.

"Since these guys are on their electoral deadlines, their finality has to do with accuracy," said Skinner's wife Sandrine Ageorges-Skinner. "You can't rush justice." (Conversation between Skinner and German filmmaker, Werner Herzog.)

The goal of any justice system has to be to find the truth. As Sandrine said, since no justice system is ever going to be infallible--there have been 289 post-conviction DNA exonerations in the U.S., according to the Innocence Project--prosecutors and judges must be willing to admit that they might have convicted the wrong person.

Post-conviction DNA testing must be granted to prisoners whose guilt is questionable--no matter what the cost, and especially when it could be an innocent person who's paying the ultimate price.

First published at The New Abolitionist.