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By William Fisher. This article was first published on OEN
Unless Governor Robert Bentley has some amazing epiphany in the next three weeks, the Great State of Alabama will execute a prisoner who in all likelihood is innocent of a murder that took place 30 years ago.
And if you're in the mood for sleepless turning and tossing in bed until then, you can read the gut-wrenching account of this case written by Andrew Cohen in The Atlantic. It is about Alabama Justice at its very worst!
This is the case of Thomas Arthur, who was convicted of the 1982 murder of one Troy Wicker, despite the confession of Bobby Ray Gilbert as the killer. Arthur has always maintained his innocence, but now the State of Alabama is denying him access to never-before-examined DNA on an item recovered from the crime scene that could identify who was actually involved in the crime. Arthur's attorneys have agreed to pay for the DNA testing.
The Arthur case was never a slam-dunk. There was no physical evidence that linked Arthur to the murder, and his sentence was secured almost entirely by the testimony of the victim's wife, Judy Wicker.
At first, Wicker told the authorities that Arthur was not involved in the crime, but when she was convicted for hiring someone to murder her husband, she arranged a deal with the prosecution.
In exchange for a recommendation of early release from prison, she changed her original testimony and implicated Arthur. Since then, Gilbert has testified under oath to the murder. Gilbert said he had an affair with Wicker and soon agreed to kill her husband.
State courts, however, have ruled that Gilbert's confession was not credible, and have opposed DNA testing.
Thomas Arthur has sat on Alabama's death row for over 25 years. He has been scheduled for execution four times. Hair and finger prints found at the crime scene did not match his. No physical evidence linked him to the murder. No murder weapon was ever found. Eyewitnesses said he was 75 miles away when the murder was committed. DNA testing of the crime scene in 2009 came back negative for Thomas Arthur. Thomas Arthur's DNA was not present on any of the crime scene evidence
The state's key witness, the victim's wife, Judy Wicker (Mary Turner now) was convicted of murdering her husband for $90,000.00 of insurance money. She was given a life sentence. In her first seven sworn statements while under oath, Judy Wicker testified Thomas Arthur had nothing to do with the murder.
Judy and her sister Theresa were both found at the crime scene with blood on their clothes. Neither woman was tested for GSR (Gun Shot Residue) to see if they had fired a weapon. The bloody clothes have never been DNA- tested to see if Troy Wicker's blood was on them.
After serving 10 years in prison Judy Wicker was released from prison in exchange for a new testimony to say Thomas Arthur killed her husband. She also changed her testimony to say it was Thomas Arthur that beat her up and killed her husband.
In the original interviews, Judy Wicker now stated Thomas Arthur had sex with her after killing her husband. This version changed after the interviews and police never charged Thomas Arthur with rape. Originally Judy has said a black man beat her up and raped her. Judy Wicker's statements disappeared from the records along with much of the physical evidence including the rape kit.
Arthur's defense is in the hands of the Innocence Project, which reports that there have been 289 post-conviction exonerations in the US, 17 of which involved the freeing of prisoners on death row.
The Innocence Project says, "After years of denying DNA testing to Thomas Arthur, who faces execution for a murder he says he didn't commit, Alabama's Attorney General now claims that the evidence in the case is missing.
The Innocence Project maintains that the state Attorney General's office has not conducted a thorough search for evidence in Arthur's case. In an affidavit filed several weeks ago, the Attorney General's office said it started looking for the evidence just six months ago -- even though Arthur first requested DNA testing six years ago. The Attorney General's office made a couple of phone calls to ask agencies if they had the evidence, then deemed it "missing" based on those phone calls.
The Innocence Project charges that "Investigators ignored key evidence and did not disclose key evidence that could of proven Thomas Arthur's innocence. This conviction was based on very weak circumstantial evidence and the key witness is a convicted murderer and has committed perjury."
They point out that Thomas Arthur has never had his first habeas corpus review. His most recent execution, scheduled for July 31, 2008, was stayed by the Alabama Supreme Court after the stay had already been denied by the Alabama Supreme Court. Another man, Bobby Ray Gilbert, said that he committed the murder.
The July 31st, 2008, execution was stayed based on the Gilbert confession. A hearing was scheduled for April 15th, 2009, in Jefferson County Circuit Court before Judge Theresa Pulliam. After hearing testimony from Gilbert and several others, Judge Pulliam ordered DNA testing on three pieces of physical evidence that were collected at the crime scene in 1982.
The three pieces of evidence were clothing worn by the victim's wife, Judy Wicker, a wig prosecutors and Judy Wicker said Thomas Arthur wore before, during and after the murder, and a single strand of hair found at the crime scene on Judy Wicker's shoe. Other key pieces of physical evidence were not available for testing, including a rape kit, because the State had lost them. On July 10th, 2009, DNA test results were turned over to Judge Pulliam.
Judge Pulliam "sealed" the test results and prevented the defense from disclosing results.
On August 10, 2009, Judge Pulliam ruled Bobby Ray Gilbert lied and that DNA test results proved he was not at the crime scene and could not have committed the murder. She also ruled Thomas Arthur perpetrated fraud against the court and provided Bobby Ray Gilbert with information to aid in his confession. There was no evidence to prove Thomas Arthur provided information to Bobby Ray Gilbert.
However, The Innocence Project takes another view. "Lets assume he did provide information to Gilbert. What would this prove? It would prove Thomas Arthur was attempting to prove his innocence in the only way he could, to have the DNA tested. The courts would not allow him to test the DNA evidence simply because of his claims of innocence."
The United States Supreme Court has ruled DNA testing to prove your innocence is not a constitutional right.
The most crucial piece of evidence, the wig worn by the killer could not be DNA tested by Alabama's Forensic Department because they lacked the advanced equipment needed for the test. Arthur requested that a more advanced lab at the defense's expense test the wig. Pulliam denied the request.
Says the Innocence Project: "Additional DNA evidence that includes blood, hair and semen was recovered and still exists, but it has never been DNA tested. Yet the State of Alabama not only refuses to DNA test the crime scene evidence -- but it is also refusing to allow Arthur to have the evidence DNA tested at his own expense."
The group adds: "It makes one wonder, if DNA test results prove one man was not at the crime scene and is lying about committing this murder, then how is it possible those same DNA test results cannot confirm Thomas Arthur was not at the crime scene? How can the same DNA test results say one man was not there and then say the other man was there? DNA test results were the same for both men: Negative."
The Innocence Project declares, "It is unacceptable that the state of Alabama is prepared to put a potentially innocent man to death rather than let him conduct a simple test that could prove his innocence."
It concludes: "In a case such as this, where the state is seeking to put to death one of its citizens, it is of the utmost importance that there be no lingering doubt as to the guilt of the convicted. In Thomas Arthur's case, however, there is evidence that he may be innocent. It is unacceptable that the state of Alabama would set an execution date and refuse to allow DNA testing that could definitively answer these lingering questions."
There have been 289 post-conviction DNA exonerations in United States history. These stories are becoming more familiar as more innocent people gain their freedom through post-conviction testing. But, according to the Innocence Project, they are not proof, however, that our system is righting itself."
The common themes that run through these cases -- from global problems like poverty and racial issues to criminal justice issues like eyewitness misidentification, invalid or improper forensic science, overzealous police and prosecutors and inept defense counsel -- cannot be ignored and continue to plague our criminal justice system, says the Innocence Project.
Seventeen people had been sentenced to death before DNA proved their innocence and led to their release.
The average sentence served by DNA exonerees has been 13 years.
About 70 percent of those exonerated by DNA testing are members of minority groups.
In almost 40 percent of DNA exoneration cases, the actual perpetrator has been identified by DNA testing.
Exonerations have been won in 35 states and Washington, D.C.
Whether Thomas Arthur will be added to these stats remains to be seen.