[Deathpenalty] [POSSIBLE SPAM] death penalty news----TEXAS, ALA.

[Rick Halperin]

Feb. 27


TEXAS:

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 
murder."

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 
Rick Perry.

'Brooding Omnipresence'

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 
Houston.

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.

Medical Examiner

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 
murdered."

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.

Trotter's Hair

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 
the victim.

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.

Earlier Investigation

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."

'Truly Persuasive'

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 
extraordinarily high."

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."

Legal Precedent

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)








ALABAMA:

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 
conviction.

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 
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"

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.

THE HEARING

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.

THE ARGUMENTS

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 [2009] 
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.

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):
http://www.amnestyusa.org/actioncenter/actions/uaa06512.pdf

UA 65/12
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 
of improper
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 
prosecuted.

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
it;
- Expressing concern that the state continues to block Thomas Arthur’s request 
for advanced DNA
testing;
- Urging the Governor to prevent the execution of Thomas Arthur, who has been 
on death row for over
25 years.

PLEASE SEND APPEALS BEFORE 29 MARCH 2012 TO:
Governor Robert Bentley
State Capitol, 600 Dexter Avenue
Montgomery, Alabama 36130
USA
Fax: 011 334 353 0004
Salutation: Dear Governor

Please check with AIUSA Urgent Action Office if sending appeals after the above 
date.

ADDITIONAL INFORMATION
At his 1991 retrial, Thomas Arthur was concerned about the adequacy of his 
court-appointed lawyers'
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 
death.

On appeal in 2002, two affidavits were filed in court which contradicted Judy 
Wicker's testimony
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 
statements. Thomas
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 
evidentiary hearing
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 
potentially
exonerating DNA testing of rape kit evidence taken at the time of the crime has 
been rendered
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 
countries are
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 ---------------------------------
** POSTAGE RATES **

Within the United States:
      $0.32 - Postcards
      $0.45 - Letters and Cards (up to 1 oz.)
To Canada:
      $0.85 - Postcards
      $0.85 - Airmail Letters and Cards (up to 1 oz.)
To Mexico:
      $0.85 - Postcards
      $0.85 - Airmail Letters and Cards (up to 1 oz.)
To all other destination countries:
      $1.05 - Postcards
      $1.05 - Airmail Letters and Cards (up to 1 oz.)

Amnesty International is a worldwide grassroots movement that promotes and 
defends human rights.

This Urgent Action may be reposted if kept intact, including contact 
information and stop action
date (if applicable). Thank you for your help with this appeal.

Urgent Action Network
Amnesty International USA
600 Pennsylvania Ave SE 5th fl
Washington DC 20003
Email: uan at aiusa.org
http://www.amnestyusa.org/uan
Phone:  202.509.8193
Fax:    202.675.8566
----------------------------------
END OF URGENT ACTION APPEAL
----------------------------------