[Deathpenalty] [POSSIBLE SPAM] death penalty news----TEXAS, ALA.
rhalperi at smu.edu
Mon Feb 27 15:03:54 CST 2012
High Court Won't Hear Death Row Inmate's Evidence of Innocence
The U.S. Supreme Court today refused to consider stopping the execution of
Larry Ray Swearingen, a Texas death row inmate who says newly uncovered
evidence proves his innocence.
Swearingen's lawyers had asked the high court to decide for the first time
whether executing an innocent person constitutes cruel and unusual punishment
under the Constitution.
Lower federal courts declined to intervene in Swearingen's case in part
because, as the law now stands, even uncontested scientific proof of innocence
isn't a valid reason for a federal judge to stop an execution.
Texas Attorney General Greg Abbott, who opposed Swearingen's request for a
Supreme Court hearing, said Swearingen's new scientific testimony doesn't
outweigh a "mountain" of other evidence "that Swearingen is guilty of capital
Federal courts also don't need to intervene because Texas's justice system
provides methods for review of innocence claims, the state attorney general's
brief said. A state court has said it will consider Swearingen's claims, Abbott
said. Swearingen also could get a pardon or commutation from Texas Governor
Questions about the constitutionality of executing an innocent person are a
"brooding omnipresence" in federal law that have "been left unanswered for too
long," Judge Jacques Wiener wrote in a 2009 ruling on Swearingen at the New
Orleans- based 5th U.S. Circuit Court of Appeals. Swearingen's appeal "might be
the very case" for the Supreme Court "to recognize actual innocence as a ground
for federal habeas relief," Wiener wrote.
Swearingen was sentenced to die for the murder of 19-year- old Melissa Trotter,
a college student who disappeared on Dec. 8, 1988, and was missing for 25 days
before her body was discovered in Sam Houston National Forest, north of
Swearingen, who knew Trotter and was seen with her on the day she disappeared,
was considered a suspect early in the police investigation. He was arrested
Dec. 11, 1988, on unrelated warrants and has been in jail ever since.
Swearingen's lawyers say forensic specialists -- including the medical examiner
who testified for the prosecution -- have looked at evidence that wasn't
considered at Swearingen's trial and now agree that Trotter's body was placed
in the forest no earlier than Dec. 18, 1998, a week after Swearingen's arrest.
More than that, Swearingen's lawyers say medical examiners who looked at tissue
samples say Trotter's internal organs were in a condition suggesting that she
was killed no more than several days before her body was found.
The Innocence Network, an umbrella group of more than 60 organizations that
helps prisoners uncover favorable evidence, said in a friend-of-the-court brief
that Swearingen has "an airtight alibi -- he was in jail when the victim was
Imposing the death penalty on someone who isn't guilty of a capital crime,
Swearingen's lawyers said, would violate the Eighth Amendment's ban on cruel
and unusual punishment and the 14th Amendment's due process protections.
Texas authorities said strands of Trotter's hair were found in Swearingen's
truck, and fibers matching Swearingen's jacket, bedroom carpet and truck
upholstery were found on Trotter's clothing. Cleaning Swearingen's trailer
after Trotter's body was discovered, the suspect's landlord found part of a
torn pair of pantyhose that, prosecutors said, matched hosiery used to strangle
Swearingen's case involves rules for habeas corpus petitions, which let federal
judges intervene in criminal cases if there is reason to believe an inmate's
rights have been violated.
In a 1993 Supreme Court decision, seven justices said they at least presumed,
for argument's sake, that the Constitution prohibits putting innocent people to
death. The high court, however, has never turned that hypothetical discussion
into a concrete rule of law.
The court ruled in 1993's Herrera v. Collins decision that new evidence, by
itself, says nothing about whether a defendant's rights were respected during
an earlier investigation and trial. An inmate needs additional evidence of a
separate constitutional violation to warrant a federal court's involvement, the
high court ruled.
"Federal habeas courts do not sit to correct errors of fact, but to ensure that
individuals are not imprisoned in violation of the Constitution," then-Chief
Justice William Rehnquist wrote for a 6-3 majority. "Claims of actual innocence
based on newly discovered evidence have never been held to state a ground for
federal habeas relief absent an independent constitutional violation occurring
in the underlying state criminal proceeding."
Rehnquist acknowledged the stakes would be keenest in death penalty cases.
"We may assume, for the sake of argument," he wrote, "that in a capital case a
truly persuasive demonstration of 'actual innocence' made after trial would
render the execution of a defendant unconstitutional, and warrant federal
habeas relief if there were no state avenue open to process such a claim."
Even then, the court said, the standard for assessing new evidence would "be
In Swearingen's Supreme Court brief, his lawyers called the appeal an
"extraordinary" case "in which the evidence of the petitioner's innocence is so
compelling that his execution would violate the Constitution."
A federal judge who reviewed the new evidence declined to stop Swearingen's
execution, in part citing legal precedent that claims of innocence alone don't
warrant habeas corpus relief.
The district court also said Swearingen, who had previously sought federal
court review of his conviction, couldn't meet strict legal standards permitting
a second habeas corpus review because the newly presented evidence, such as
tissue samples, existed at the time of his earlier appeal and could have been
discovered before his 1st appeal with sufficient effort.
The case is Swearingen v. Thaler, 11-233.
(source: Bloomberg News)
Another Death Row Debacle: The Case Against Thomas Arthur----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
THE TRIALS OF THOMAS ARTHUR
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 2nd 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. 3 times the state got a
conviction and death penalty against him. Three times there were problems at
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
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
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.
(source: Andrew Cohen is a contributing editor at The Atlantic and legal
analyst for 60 Minutes. He is also chief analyst and legal editor for CBS Radio
News and has won a Murrow Award as one of the nation's leading legal analysts
and commentators; The Atlantic)
URGENT ACTION APPEAL
- From Amnesty International USA
For a print-friendly version of this Urgent Action (PDF):
Issue Date: 27 February 2012
Country: USA (Alabama)
ALABAMA SETS EXECUTION OF 70-YEAR-OLD MAN
Thomas Arthur, aged 70, is scheduled to be executed in the US state of Alabama
on 29 March for a
murder committed in 1982. He has been on death row for more than 25 years.
On 1 February 1982, police were called to the home in north-western Alabama of
Judy and Troy Wicker.
Troy Wicker, aged 35, had been killed by a single shot through his right eye.
Four bullet casings
were found at the scene. Judy Wicker was lying injured and had traces of blood
on her. Her sister
Teresa Rowland was kneeling beside her. Judy Wicker told police that she had
come home to find an
African American man in the house, that he had raped her, and shot her husband.
The murder weapon
was never found.
Judy Wicker was charged with committing the murder to collect the insurance
proceeds, convicted and
sentenced to life imprisonment. Thomas Douglas Arthur was accused of the actual
shooting and charged
with capital murder because he had a previous murder conviction. In 1983, he
was sentenced to death.
His conviction was overturned in 1985 due to improper admission of evidence. He
was sentenced to
death at a retrial in 1987. In 1990 his conviction was again overturned because
admission of evidence. The parole board was asked if Judy Wicker might be
released early in exchange
for her testimony against Thomas Arthur at his retrial. At this meeting with
the board, Judy Wicker
was represented by a lawyer who was subsequently hired as a prosecutor and
represented the state at
this retrial. The state's main witness at this trial was Judy Wicker, the
prosecutor's former client
whose testimony the prosecution had sought in return for assistance with her
parole bid. Judy Wicker
was paroled about a year after Thomas Arthur's 1991 retrial, having served 10
years in prison.
At her own trial in 1982, Judy Wicker had testified that Thomas Arthur was not
involved in the
murder, but that a burglar had killed her husband. This was what she had told
the police at the time
of the murder. However, at Arthur’s 1991 retrial, she testified that in 1981,
she, Teresa Rowland
and Rowland's boyfriend, Theron McKinney, had discussed killing Troy Wicker.
She testified that she
knew that the murder would take place on 1 February 1982, that she and Thomas
Arthur had gone to the
house together, and that she had agreed to tell the police that her husband had
been murdered by an
African American burglar. She said that she collected $90,000 in insurance
proceeds, and that she
paid $10,000 to Thomas Arthur and $6,000 to Teresa Rowland, and gave a car and
jewellery to Theron
McKinney for their assistance in the murder. Neither Rowland nor McKinney was
Thomas Arthur maintains his innocence. There is no physical evidence against
him. He is not seeking
executive clemency, but continues to seek DNA testing of crime scene evidence
to confirm the sworn
statement of another inmate who claims to have killed Troy Wicker but which a
state court has
dismissed as a lie (see overleaf).
Please write immediately, in English or your own language:
- Explaining that you are not seeking to excuse violent crime or to minimize
the suffering caused by
- Expressing concern that the state continues to block Thomas Arthur’s request
for advanced DNA
- Urging the Governor to prevent the execution of Thomas Arthur, who has been
on death row for over
PLEASE SEND APPEALS BEFORE 29 MARCH 2012 TO:
Governor Robert Bentley
State Capitol, 600 Dexter Avenue
Montgomery, Alabama 36130
Fax: 011 334 353 0004
Salutation: Dear Governor
Please check with AIUSA Urgent Action Office if sending appeals after the above
At his 1991 retrial, Thomas Arthur was concerned about the adequacy of his
preparation and investigation of the case and their lack of communication with
him. The trial judge
allowed him to represent himself, without conducting any hearing into whether
he was knowingly and
voluntarily waiving his right to counsel. The prosecution linked him to the
crime through the
testimony of Judy Wicker, herself convicted in the murder and an admitted
perjurer, as well as
through testimony alleging that he had got someone to buy bullets the day
before the crime. Another
witness testified that he had dropped a rubbish bag into the river on the day
of the murder. A large
amount of money was found in his belongings sometime after the murder. The
state has presented no
physical evidence against Thomas Arthur and his fingerprints were not found at
the scene. He was
convicted on 5 December 1991 after a three-day trial. At the sentencing on the
same day, he urged
the jury to pass a death sentence, stating that he would not be executed
because his conviction
would be overturned on appeal, telling the jury that he had already twice been
sentenced to death.
After a sentencing phase that lasted for about 90 minutes, the jury voted 11-1
to recommend a death
sentence. On 24 January 1992, the judge formally sentenced Thomas Arthur to
On appeal in 2002, two affidavits were filed in court which contradicted Judy
that Thomas Arthur was with her on the morning of the murder. Alphonso High and
Ray Melson stated
that he had visited them that morning. If true, their statements would
establish that Thomas Arthur
was about an hour's drive away from the Wicker' home at the time of the murder.
However, the state
obtained its own affidavits from the two men contradicting their original
Arthur's lawyers requested a hearing to resolve the factual disputes. In 2006,
the US Court of
Appeals for the 11th Circuit ruled that the disputed affidavits did not
constitute sufficient new
evidence for Arthur to be granted a new federal hearing of his case.
In July 2008, Alabama prisoner Bobby Ray Gilbert, serving a life sentence,
signed a sworn statement
that he had killed Troy Wicker. He said that he had been having an affair with
Judy Wicker in 1982,
and that she had asked him to kill her abusive husband. He said that he shot
Troy Wicker with a
sawed-off rifle which he had been given by his grandfather when he was seven
years old. He said that
after the murder, while still at the crime scene, he and Judy Wicker had had
unprotected sex. A
number of weeks after the murder, he said, Judy Wicker had paid him $2,000 for
the killing. In his
affidavit Gilbert claimed that he wanted "to set the record straight," and was
"no longer afraid
since the US Supreme Court ruled that a minor cannot receive the death penalty"
(he stated that he
was under 18 at the time of the crime). A state trial-level court conducted an
in 2009 and concluded that Gilbert's claims were false and that the statement
had been prepared with
Thomas Arthur's assistance. Narrow DNA testing ordered by the court did not
identify Gilbert’s (or
Arthur's) DNA profile, but indicated that Judy and Troy Wicker had had sex
before he was shot. The
court concluded that this further exposed the Gilbert affidavit as a fraud.
Thomas Arthur is seeking advanced DNA testing on a wig that was worn by the
gunman, in an effort to
prove that the Gilbert affidavit is true and that Arthur was not present at the
crime. His lawyers
have said that they are prepared to pay for the testing, but the state
continues to block them. His
lawyers are also arguing that his execution would be unconstitutional because
exonerating DNA testing of rape kit evidence taken at the time of the crime has
impossible because the state claims that the kit has been destroyed (which it
only claimed in 2008
after six years of litigation on the matter).
Amnesty International opposes the death penalty in all cases, regardless of
questions of guilt or
innocence, the facts of the crime, or the method of execution. Today, some 140
abolitionist in law or practice. There have been 1281 executions in the USA
since judicial killing
resumed there in 1977, including 55 in Alabama. There have been four
executions in the USA so far
in 2012, carried out in Florida, Mississippi, Oklahoma and Texas.
Name: Thomas Douglas Arthur (m)
Issue: Death penalty ---------------------------------
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