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.