Alabama refuses to allow DNA test which could exonerate death row inmate
By End the Lie
Three decades ago, Thomas Arthur was convicted of murder. He is scheduled to be executed next month, despite the many uncertainties in the prosecution’s case against him. As you read on about the events that have taken place since the murder of Troy Wicker on February 1, 1982, you will likely come to be astounded by the absurdity of the state’s case against Arthur.
That being said, I must be fair in my treatment of this man. Arthur is far from a man I am quick to feel sorry for, especially given his escape from jail in 1986 which involved shooting a prison guard.
Then again, as Andrew Cohen, a contributing editor at The Atlantic and 60 Minutes legal analyst points out, when one looks at the history of this case it becomes clear that there is something very wrong.
The case makes so little sense it is almost mind boggling. Alabama actually convicted Arthur and sentenced him to death a whopping three times and every time there were problems at trial.
Yet the most absurd part of the whole debacle is the fact that the prosecution’s entire case hinges on the testimony of the victim’s wife, Judy Wicker, who claimed at the time that she had been raped by a stranger.
Alabama investigators repeatedly asked if Arthur was involved and she said no every time. But the whole story changed after Wicker was convicted to murder and subsequently sentenced to life in prison.
She cut a deal with prosecutors and in exchange for a recommended early release; she changed her testimony and accused Arthur of the crime.
For over two decades state and federal courts have upheld the third and final conviction of Arthur based on Wicker’s clearly untrue testimony.
This entire debacle would be ludicrous enough if it ended there, but it only gets worse.
In 2008 Bobby Ray Gilbert, who was already serving life in prison without parole for stabbing another inmate to death over cigarettes, confessed under oath that he murdered Troy Wicker, not Arthur.
At the time, an attorney for the state claimed that Gilbert lacked credibility, even though he clearly had nothing to gain from the confession.
Gilbert gave many gruesome details about the crime, including the exact weapon and distance from which he shot Wicker.
In Gilbert’s affidavit he testified that he was paid $2,000 by Wicker’s wife, who he was having an affair with at the time.
He testified that Wicker instructed him to have sex after the crime and beat her, which lead to her claim that the burglar raped her and killed her husband, which of course turned out to be a complete lie.
The fact that it is even legal for someone to get released early after changing testimony at the behest of prosecutors is quite disturbing. It is also a perfect example of just how flawed the American “justice” system really is.
Gilbert’s story could very easily be verified, since he said that he wore a disguise during the murder consisting of an “Afro wig” and dark makeup.
After the murder, Gilbert said he drove Wicker’s car to a parking lot to meet his cousin, still wearing the disguise. Later, police recovered the vehicle and found the “Afro wig” inside it in the parking lot of Northwest Alabama State Junior College.
This is the wig which Arthur’s attorneys want tested for DNA, as it would definitively substantiate Gilbert’s confession and thus exonerate Arthur completely.
While it is indeed curious that Gilbert would choose to wait more than 25 years to come forward with his confession, Arthur’s attorneys make it quite clear why he waited.
“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,” Arthur’s attorneys said.
The Supreme Court decision referred to here is Roper v. Simmons, a 2005 decision which determined that executing murders under 18 at the time of the crime violated protection from cruel and unusual punishment under the 8th Amendment.
After the Alabama Supreme Court stayed his execution date in 2008, he was given the opportunity to test the case’s key evidence for DNA.
No evidence linked either Arthur or Gilbert to the crime, but Judy Wicker’s rape kit (which would likely carry Gilbert’s DNA due to the fact that Gilbert claims they had unprotected sex after the crime) was missing from the list of evidence and had been before Arthur’s third and final trial in 1991.
Forensic experts discovered DNA on the wig but for some reason were unable to use it to develop a comparative DNA profile which could have exonerated Arthur.
The hearing was even more farcical than the rest of the case.
Arthur called on Gilbert to repeat his confession in open court, but Gilbert exercised his 5th Amendment right to remain silent.
Arthur’s attorneys say this was due to Gilbert being punished by prison officials after giving his original confession. Unsurprisingly, Alabama denied any wrongdoing and claimed that Gilbert said he would recant his confession entirely if he was given back certain prison privileges.
It appears that Gilbert was taking note of the maneuvers made by Judy Wicker and was trying to exploit a thoroughly corrupt system like she had. Judy Wicker herself also took the stand and claimed that Gilbert was lying.
The judge ruled that Gilbert and Arthur were attempting to “perpetuate a fraud” against the court and rejected Gilbert’s story entirely.
She nonsensically claimed that the lack of DNA evidence linking Gilbert to the murder scientifically proved that Gilbert was giving a false confession. Of course, if one used the same logic and applied it to Arthur’s case, one would conclude that it was scientifically proven that Arthur was innocent.
The attorneys for Arthur are challenging this ruling and now are calling for more advanced DNA testing on the wig which was not available to Alabama back in 2008 and 2009 when the original testing took place.
In an email to Cohen Suhana Han, Arthur’s lead attorney, explained why they are calling for a new test,
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.
Han said that if this new profile matched anyone other than Arthur they “would consider that evidence that Mr. Arthur didn’t wear the wig all parties agree was worn by the perpetrator.”
Alabama claims, “[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.”
Cohen rightly points back to the fact that Arthur murdered a prison guard during his escape, which means that it is highly doubtful that guards would be compliant with Arthur and pass notes for him.
Alabama claims that just the supposed lack of credibility of Gilbert is enough to justify the judge’s conclusion that Arthur was not entitled to any relief and thus has no responsibility to authorize any additional testing, even though the attorneys for Arthur have offered to foot the bill.
Furthermore, Alabama is alleging that the advanced testing requested by Arthur’s representation is no better than the tests conducted years ago.
They also claim that there is no more DNA left on the wig, although this could be verified through actual DNA testing and not the unilateral claims of a clearly corrupt prosecutor’s office.
Cohen rightly states, “The fact that Arthur’s attorneys are willing to pay for the test makes the state’s refusal to test unconscionable.”
This is especially true when one considers the astounding amount of money that the state prosecution must have poured into Arthur’s case. Considering that they had to pay for years of prosecution, imprisonment, investigation and eventually defending their conviction, the sum is quite likely astronomical.
Cohen sums up the case so aptly that I think I would be doing a disservice to him by not including it in this article word-for-word.
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.
This case is one of the most obvious examples of how hopelessly corrupt and thoroughly laughable our so-called justice system in the United States has become.
Considering the fact that the so-called “tough-on-crime” laws do not even lower violent crime rates, coupled with the clearly inconsistent manner in which crimes are prosecuted, I believe that the entire system in the United States needs to be rebuilt from the ground up.
So long as private prisons stand to profit from these types of policies and prosecutors do not value the truth or justice but instead “winning” we will continue to see the United States claim the title as one of the most tragically corrupt and unjust nations on earth.
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