© 2007 The Justice Institute -
Thomas Arthur’s case exposes the sordid underbelly of how the processing of a criminal case in the United States has evolved into a system that is not dissimilar from the operation of an assembly line.
An
indicted or otherwise charged person begins their travail at the
system’s induction end and (unless their case is rejected as a
defective for some reason) they exit at the other end stamped guilty or
not guilty with as little interruption as possible to the smooth
functioning of the process. This necessitates obtaining an overwhelming
percentage of convictions by a guilty plea, since a trial clogs the
system. The three most obvious factors pressuring a guilty plea are
prosecutors overcharging a defendant with alleged crimes, judges who
make prosecution favorable rulings, and the over-burdening and
under-funding of court-appointed lawyers that most defendants must rely
on for representation.
A prosecutor’s guilty plea offer for
reduced charges is a no-brainer for most defendants when the
alternative is a much more severe sentence after a likely conviction
resulting from representation by an overmatched court-appointed lawyer.
The fabulous success of this strategy is evidenced by the 96% of
convictions obtained nationwide by a guilty plea.
The system’s
regularity of processing defendants is, however, interfered with by the
low percentage of defendants who insist on a trial at the peril of
facing an enhanced sentence if they are convicted. That peril is
magnified by the Byzantine rules governing the direct appeal and
post-conviction appeal process that follows a conviction.
When
Thomas Arthur protested his innocence and went to trial in 1991 for the
1982 murder of a man in Muscle Shoals, Alabama, he did so with a
court-appointed lawyer paid the $1,000 mandated by Alabama law. Arthur
received the representation $1,000 will pay for – which isn’t much.
Among other things his lawyer made no effort to investigate alibi
witnesses that Arthur told him could establish that at the time of the
murder he was more than an hour away in Decatur, Alabama. One thing the
lawyer did do right was file a pre-trial motion for forensic testing of
crime-related evidence that could exclude Arthur as being present at
the crime scene. That evidence includes sperm, hairs, blood, and a
bullet and bullet cartridges. The prosecutor opposed testing the
evidence, and the trial judge denied the motion.
The
prosecution’s “star witness” was Judy Wicker. When interviewed at the
crime scene, she told officers that her husband, Troy, was shot by a
black man who beat and raped her. A rape kit that included semen
collected from her was preserved. Suspicious circumstances led to Judy
being charged with her husband’s murder. At her trial she testified a
lone black man committed the crime, just as she had told the police.
Judy was convicted and sentenced to life in prison.
At the time
of Arthur’s 1991 trial his prosecutor was Wicker’s former lawyer. He
made a deal with Wicker that if she testified that Arthur murdered her
husband she would be released on parole. She was released within days
after Arthur’s conviction and sentence of death.
Again
represented by an underpaid court-appointed lawyer, Arthur’s conviction
was affirmed on direct appeal. Alabama does not provide post-conviction
legal counsel to death row prisoners, and Alabama’s death row lacks a
law library. So a death row prisoner without financial resources is
dependent on finding a lawyer who will represent him (or her) pro bono.
By the time Arthur found a law firm willing to represent him, Alabama’s
courts ruled the time had expired for him to file a state
post-conviction appeal, so his petition was dismissed as procedurally
defaulted. Likewise, the federal courts ruled that the one-year time
limit for filing a federal habeas corpus petition challenging Arthur’s
conviction had expired. So the merits of Arthur’s post-conviction
challenges to his conviction, which include the constitutional
inadequacy of his trial counsel, have never been considered by any
state or federal court.
On April 12, 2007, Arthur’s lawyers
filed a federal civil rights lawsuit (42 USC §1983) for an order
compelling Alabama to do what they had refused since 1991 to do
voluntarily – allow forensic/DNA testing of the evidence. Arthur’s pro
bono law firm was willing to have the evidence tested at their expense.
Testing the sperm collected from Judy Wicker could prove Arthur didn’t
rape her (or otherwise have sex with her), it could identify who did,
and the other untested evidence could possibly also be linked to that
same man – further identifying him as the actual murderer.
The
lawsuit was filed five days before Alabama Attorney General Troy King
requested that the Alabama Supreme Court set Arthur’s execution date,
which on June 22 it set for September 27, 2007. Alabama opposed the DNA
lawsuit, claiming it was a ploy to delay Arthur’s execution and they
argued testing the evidence would not directly prove his innocence of
committing the murder. After the U.S. District Court agreed with
Alabama and dismissed the lawsuit, the Eleventh Circuit affirmed the
dismissal. Arthur’s attorneys then filed a writ of certiorari in the
U.S. Supreme Court.
While the Supreme Court was considering
whether to review the dismissal of Arthur’s DNA lawsuit, Alabama
Governor Bob Riley ordered a 45-day stay six hours before Arthur’s
scheduled execution on September 27. The stay was to allow the state
Department of Corrections time to revise its lethal injection protocol.
The Alabama State Supreme Court subsequently set a new execution date
of December 6, 2007. On November 26, 2007 the U.S. Supreme Court
declined to review the dismissal of Arthur’s DNA lawsuit.
So as
this is written on Monday, December 3, 2007, Arthur is three days away
from his scheduled execution for Troy Wicker’s murder. The jury that
convicted him did not make an informed decision. Their verdict was
based on incomplete evidence because the prosecutor, with the trial
judge’s aid, successfully blocked forensic testing of the crime-related
evidence by techniques available in 1991. Why did the prosecutor who
bribed Judy Wicker to lie under oath want so desperately to prevent the
testing of the evidence? Is there any reasonable explanation other than
that he knew it would have excluded Thomas Arthur from being present at
the crime scene? Furthermore, the only reasonable explanation for
Alabama’s continued opposition to the testing of that evidence by
today’s most sophisticated forensic/DNA techniques is the fear of what
the result would be – the exclusion of Arthur, and the identification
of the DNA profile of who in fact murdered Troy Wicker.
The U.S.
Supreme Court has accepted two cases that challenge the
constitutionality of execution by lethal injection, so either the Court
or Governor Riley may issue a stay of Arthur’s execution pending the
Court’s decision in those cases sometime next year.
A stay,
however, would have no effect on Arthur’s conviction. Arthur’s
conviction resulted from a pop-gun defense by a grossly underpaid and
ill-equipped court appointed lawyer, a prosecutor hell-bent on
concealing the truth and getting Arthur’s conviction by any tactic no
matter how unethical or even illegal, and a judge all too eager to be a
modern day Judge Roy Bean. Arthur’s inability to get his conviction
overturned is not because he doesn’t have issues that compel the
granting of a retrial that comports with basic notions of due process,
but because with very few exceptions, state and federal judges worship
at the alter of maintaining procedural regularity at the price of
disregarding the substance of a defendant’s claims. The hurdles a
defendant must overcome to successfully challenge a conviction – no
matter how shaky or insubstantial it may be – is indicated by the fact
that the considerable legal and investigative efforts for six years by
the New York law firm representing Arthur pro bono have been for naught.
If
Arthur had pled guilty to Troy Wicker’s murder he would have been
sentenced to life in prison. So his punishment for insisting on his
innocence and going to trial was having his sentence upgraded from life
to death. That was his “trial penalty.” Consequently, Arthur is not
facing execution by the State of Alabama because he was convicted of
Wicker’s murder, but because he demanded his right to a trial. Arthur’s
conviction, and his sentence, are products of this country’s
intolerance for the small percentage of people foolhardy enough to buck
the assembly-line guilty plea bargaining system by publicly asserting
they are in fact not guilty.
Thomas Arthur’s case exposes for
anyone who cares to look, that the underbelly of the United States’
legal system is sordid: Its obsession with extracting guilty pleas to
keep the system smoothly operating is based on a fundamental disregard
for the truth of whether a conviction is based on the reality of the
person’s guilt or innocence. Arthur may be actually innocent of Tony
Wicker’s murder, but the legal system doesn’t care to find out as it
hurtles toward his execution that every court, including the U.S.
Supreme Court, has thus far sanctioned without considering if his
conviction is actually legitimate.