Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic

When DNA Isn’t Enough,
Part 2

This is the second in a two-part series concerning cases in which DNA evidence has conclusively established innocence but the courts have attempted to preserve the wrongful conviction.

In an article in USA Today by reporter Richard Willing, written last year, quoting United States Senator Patrick Leahy, speaking to the importance of using DNA in light of it’s reliability, the Senator said, “DNA is such a powerful tool in providing guilt or innocence that it’s inexcusable not to use it” In the ongoing case of Thomas Arthur, the situation would appear worse. Arthur has been unable to get courts to agree to allow him to have the testing, and he is currently one court denial away from being executed.

Thomas Arthur was convicted of murder in 1991 and was sentenced to death. He has been on death row in Alabama for 25 years. Alabama does not have a statute which gives prisoners the right to DNA testing, and Arthur’s attempts to get DNA testing of evidence have thus far been unsuccessful to the point where he is down to his final appeal.

Across the country, his case has gotten the support of The Innocence Project, which has helped get thousands of letters and emails forwarded to Alabama Governor Bob Riley from the general public. The Birmingham News and Amnesty International have also come out publicly for Arthur.

The facts of Arthur’s case, taken from the magazine Justice Denied, are as follows: “Judy Wicker was convicted of committing murder in 1982 in
Muscle Shoals, Alabama against her husband Troy Wicker. After almost ten years of imprisonment she made a deal with the State of Alabama.

She would be paroled from her life sentence in exchange for recanting her trial testimony and numerous extra-judicial statements that she had been raped by a black intruder who then killed her husband, and that Thomas Arthur had nothing to do with the crime to instead state that Arthur killed her husband Troy Wicker , and that she was having an affair with him.

None of the plethora of crime scene evidence that included hair, blood, sperm, fingerprints, was forensically linked to him. The only direct evidence placing Thomas Arthur at the murder scene was the revised testimony of Judy Wicker.

Judy Wicker also directly implicated her sister and her sister’s boyfriend in Troy Wicker’s murder, but, for still unexplained reasons, they were
never prosecuted.

The State of Alabama has for many years unwaveringly opposed making the crime scene evidence in Thomas Arthur’s case available to him for forensic testing at his expense. Alabama’s refusal to allow post-conviction testing of the evidence has continued with its opposition to a federal civil rights lawsuit Thomas Arthur filed seeking access to the biological evidence for DNA testing that could contribute to proving his innocence.

That evidence sought for DNA testing includes Judy Wicker’s clothing, Judy Wicker’s rape kit that includes sperm recovered from her the morning of the murder, a wig and hair samples collected from Judy Wicker’s car, vacuum sweepings from the Wickers’ home, hair samples taken
from a shoe, bullet cartridges, a bullet, and a pillow case taken from the Wickers’ home.

The office of Alabama’s Attorney General strong-armed two credible alibi witnesses to recant their post-trial sworn affidavits that on the morning
of Troy Wicker’s murder they saw and talked with Thomas Arthur in Decatur, which was then about an hours drive from Muscle Shoals.”

Arthur’s trial attorney, who was paid a total of $1000, which is the maximum amount of money that Alabama law allows, has admitted that Arthur received inadequate legal representation. In addition, Arthur has been without an attorney during some of the appeals process, with the result that he has missed some filing deadlines, before finally securing an attorney.

Arthur has been scheduled to be executed several times. The following timeline was taken from The Birmingham News: “Arthur came within hours of being executed Sept. 27, but Gov. Bob Riley issued a stay so the state could add a step to its execution procedure. Arthur’s execution was rescheduled for Dec. 6 and blocked again on Dec. 5 by the U.S. Supreme Court, pending the outcome of a Kentucky challenge to the constitutionality of lethal injection.

The court in April upheld lethal injection by a 7-2 vote.” Arthur’s execution was stayed pending that decision. During that time The Innocence Project began a campaign encouraging the public to send emails to Alabama’s governor, to order DNA Testing, and thousands of emails were sent.

Nonetheless, the Governor refused, and continues to refuse to order the testing. Following the United States Supreme Court decision, Arthur was
again scheduled for execution to take place on July 31, 2008. However, he again received a last-second stay of execution by the Alabama Supreme Court, because of an appeal by Arthur based upon another prisoner coming forward to say that he, and not Arthur, committed the murder.

The Birmingham News reported that “Bobby Ray Gilbert, who is serving a life sentence at St. Clair Correctional Facility for stabbing another inmate to death in a dispute over a carton of cigarettes, this week claimed he had an affair with Judy Wicker in 1982, and that he committed the crime. In response to that, Wicker filed a sworn statement that ‘None of Gilbert’s allegations are true,’ Wicker said in a sworn statement filed Wednesday. ‘I do not know anyone named Bobby Gilbert. I hired and paid money to Thomas Arthur, not Bobby Gilbert, to kill Troy Wicker.’”

Arthur’s attorney sought to have DNA on the rape kit collected at the crime scene, and other items to see if it would corroborate Gilbert’s
story of having sex with Judy Wicker on the day he committed the murder. It was at this time that Assistant Alabama Attorney General
Clay Crenshaw revealed in an affidavit that the state could not find that evidence.

The following excerpt from The Birmingham News speaks to this development: “The Muscle Shoals Police Department, Colbert County
District Attorney’s Office, and the Alabama Department of Forensic Sciences all said it’s not in their possession, he said. ‘All I know is that
they don’t have it,’ Crenshaw said. Attorneys for Arthur called the loss of the evidence ‘astounding.’ State and federal courts previously have
rejected Arthur’s requests for access to the evidence, ruling that even favorable results from DNA tests would not prove his innocence, and that he
missed filing deadlines.”

According to The Birmingham News, also in Judy Wicker’s affidavit was the claim that, “Arthur’s daughter, Sherrie Stone, offered to pay her
to falsely testify that Arthur is innocent. Stone denied trying to bribe Wicker, but said she told Wicker during a visit last year that ‘we would be
happy to help her family if any money came out of it. I told her I wanted her to tell the truth,’ Stone said.” Justice Denied, which is a magazine
dedicated to exposing both ongoing cases of wrongful conviction and ones in which an exoneration has taken place, as well as cases in which a wrongful conviction has likely taken place, had the following commentary on the Arthur case: “Murder can be characterized as what a State intends when it uses its prosecutorial power to obtain a conviction and death sentence that is tainted by numerous pre-trial, trial, and post-trial irregularities, and, possibly illegal tactics that have a direct bearing on concealing both the truth of the crime and the possible innocence of the defendant.

Murder describes what will happen September 27, 2007, if the State of Alabama and its agents commit the “wicked and morally reprehensible”
act of administering a lethal mix of substances into Thomas Arthur’s body until he is legally, clinically, and permanently dead – when there
is the all too real possibility that he is factually innocent of Troy Wicker’s murder and the evidence that could prove it remains untested.”

In addition to the above sentiments which I completely endorse, I would like to add some thoughts. This case in many ways represents a reverse Alice in Wonderland: So many bizarre things going on that it could not possibly be real. And yet it is. The idea that a witness who was convicted of conspiring to have her husband killed and who served 10 years in prison prior to changing her story to incriminate someone else in exchange for being paroled, is credible, defies common sense. In many previous issues of The Guardian, I have written about how incentivized witnessing, a witness receives a benefit in exchange for their testimony, is unreliable and has resulted in wrongful convictions in 15% of the DNA Exonerations
and many other non-DNA cases. In my view, a prisoner who is already convicted and in state prison would be hard-pressed to receive a better deal than what Wicker received: being paroled from serving a life sentence. That alone makes her testimony unreliable. I find the Alabama State Legislature to be far behind the times in not giving prisoners the right to DNA testing, and for finding ways to uphold convictions at any cost,
through prosecutors fighting to win, no matter what. I believe the court rulings against Arthur to be immoral and criminal, making a mockery of the bedrock principle that courts are supposed to be places where justice reigns.

Similarly, it is a most serious example of prosecutorial misconduct for the Assistant Attorney General to only just recently claim that the evidence
has been lost. Suppose Arthur had won any of his prior appeals to get the testing. He would have been unable. In terms of both deception and trying to win at all costs, it doesn’t get any more stark than that. It is sickening that for a time Arthur, sentenced to death, was not given an attorney to handle his appeals, and that Alabama, in general, does not provide attorneys for death row prisoners.

There was nothing to lose by allowing Arthur to test all of the DNA. The fact that the evidence has come up missing now that another person has
claimed responsibility for the crime, is very suspicious. In my view, based upon the occurrence, and in light of all of the facts of this case, Arthur not only should not be executed, but his conviction should be overturned, the charges dismissed, and he should be immediately freed. This case has all of the hallmarks of a wrongful conviction.

Certainly, the bizarreness of this case should entitle him to a new trial with the benefit of a competent attorney, with sufficient funds, to make use of all of the crazy happenings in this case, in order to illustrate plenty of reasonable doubt. I cannot imagine a jury, once again, finding him guilty.