In Alabama, a death row prisoner could be exonerated by a DNA test. Why are the courts preventing this from happening -- especially when another man has already confessed to the crime?
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
Thomas Arthur / AP
Apart from the fact that he may have spent decades on death row for a crime he didn't commit -- based upon the testimony of a convicted murderer with a motive to lie -- Arthur isn't exactly a sympathetic figure. In 1986, while awaiting his second trial, he escaped from jail by shooting one of his guards. But any reasonable person looking at the tortuous history of his case through the decades would see that there is something wrong here. Three times Alabama tried Arthur for murdering Troy Wicker on February 1, 1982. Three times the state got a conviction and death penalty against him. Three times there were problems at trial.
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"
MORE ON THE DEATH PENALTY
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.