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)