Governor Bob Riley
Dear Governor Riley,
This is my third letter to you. It is my decision to keep writing to you, as my conscience compels me to. Every day I start my day off by scouring the tabloids to see if you had either ordered a stay for Thomas Arthur or ordered DNA testing. Every day, so far, I turn back disappointed.
Questions remain: “Will it happen? Will the Governor of Alabama look fully into the circumstances surrounding the case and take note of what others are saying about the case? Will the Governor look at what other States/Courts of State are doing and follow their example?”
Governor, can you maybe explain why others are halting executions, waiting for the outcome of Baze v. Rees currently with the US Supreme Court and you are not?
The US Supreme Court and other Courts have granted several stays, to date, viz. Carlton Turner, Heliberto Chi, Jeffrey Landigren, Jack Harold Jones Jr., William Castillo, Christopher Scott Emmett and so the list seems to be growing.
In this, Justice Antonin Scalia was the only Justice dissenting in Jones, which is a clear indication that the other Justices of the US Supreme Court supports the halting of executions, until their decision in Baze v. Rees. Some lower court Judges even postponed trials and other Governors asked that executions not proceed, until the decision in Baze v. Rees.
The question I want to ask is: “Why are you not taking note of this and following suit or, at least, issue a statement on this issue?”
Speaking of statements, the following statements were previously made right on your doorstep:
1. In 2001, Clay Crenshaw from your DA’s office, said:
“As long as DNA testing appears to be legitimate and not just a stalling tactic, the attorney general's office will agree to testing in any death row inmate's case.” (Birmingham Post Herald – Reporter Jeb Phillips.)
Now, according to Crenshaw, the test here would be “Is Thomas Arthur’s request a stalling tactic and is his request legitimate?”, not so? Nowhere does Crenshaw level any other requirements.
In light of this and in perusing the record, FACTS show that Arthur requested DNA access to items for DNA testing as early as 1991 (In July 1991, Mr. Arthur’s trial counsel filed a “Motion to Inspect, Examine and Test Physical Evidence.”) and throughout the following years.
This thus confirms that Arthur’s action now of requesting DNA testing is not dilatory and NOT a stalling tactic!!!
Is his claim “legitimate”, as Crenshaw stipulates it should be?
An overwhelming YES!!! The existence of possible exculpatory untested DNA evidence in itself, taking into account that a main witness, being a convicted murderer herself and having changed her testimony so many times, makes Arthur’s claim legitimate. This, coupled with the FACTS that independent witnesses confirmed that he was elsewhere the day of the murder, the bullet casings do not match the bullets found, two persons, implicated in the testimony of the main witness not having been prosecuted, samples and fingerprints not putting him at the scene of the crime, several jurors of his last trial stating that they would have ruled differently, if they had seen ALL of the evidence, the recanting of witness statements given at trial, etc. etc. etc.
Reasonable doubt? No, OVERHWELMING doubt!!!
My question: “Why is Crenshaw then not living up to his undertaking?”
2. In 2001, state Rep. John Rogers, D-Birmingham, who sponsored a DNA testing bill previously, stated:
"I'm afraid we've got some folks on death row who shouldn't be there. Not to give a person a simple DNA test to find if they are guilty or innocent is wrong." (Birmingham Post Herald – Reporter Jeb Phillips.)
The trend in the USA, where numerous accused were exonerated, due to DNA testing, confirms the legitimacy of this statement. It is interesting to note that the DNA testing bill didn't even make it to a vote in the legislature previously and Rogers blamed that on lobbying from the attorney general's (Crenshaw’s) office. Rogers called the state position that it will allow any reasonable post-conviction DNA testing a "smoke screen."
What is Crenshaw afraid of, Governor?
3. In June 2006, the American Bar Association said this in a report on Alabama’s Death Penalty Laws, Procedures, and Practices:
“Our system cannot claim to provide due process or protect the innocent unless it provides a fair and accurate system for every person who faces the death penalty.”
“Claims of newly discovered evidence and the normal post-conviction discovery procedures require the new evidence to “exist” before such a claim can be reviewed on the merits. Because the results of the testing, rather than the method of testing itself, can be construed as the newly discovered evidence, a claim of newly discovered evidence cannot be made until testing is performed and the results are discovered. This means that a petitioner likely would not have a meritorious claim for DNA testing through post-conviction discovery without first knowing the results of such testing, resulting in petitioners being unable to discover the evidence they need to prove their innocence.”
“As a result, petitioners seeking post-conviction DNA testing must seek such relief under post-conviction rules that do not adequately protect against the execution of the innocent.”
In other words, they have zero chance. Is this fair, Governor?
I see that your office keeps bringing up the rights of the victim’s family. Well, the sister of the victim, Peggy Wicker Jones, says it would be OK to have the DNA tested. In fact, she is asking for it to be done!!!
Likewise, one can never look past the fact that, as a result of the delay/denial of logical justice, Thomas Arthur’s family has now also become victims. The uncertainty and silence from your office establishes this. Sherrie Stone and her disabled brother, whom are being denied telephonic contact with their father, due to a self-imposed rule that does not exist in written form, have now become victims as well.
In addition, your citizens of Alabama are also becoming victims, as the uncertainty as to whose DNA was found at the crime scene, impacts on their safety, guaranteed in Section 35 of your Constitution, as a possible murderer could be out there, who could easily have been identified by DNA testing and a hit on your DNA database. The denial of DNA testing in this case is contrary to the objective of protection guaranteed by this section in your Constitution.
Governor, a July 2005 poll by the Capital Survey Research Center found that 57 percent of Alabamians have concerns about the fairness of the death penalty and would support a moratorium, or a temporary halt, of executions while questions of fairness and reliability are studied. The same poll found that 80 percent think that the current death penalty process could result in the execution of an innocent person. They say your death penalty policy is “broken”, Governor, the same words used by Judge Jeremy Fogel in California, which resulted in a de facto moratorium.
They are in the majority, Governor. Don’t you think it is time someone listens to them?
Having said all that, I AGAIN ask you, for the sake of decency, humanity, mercy and justice, to allow DNA testing to be done in this case. Your Creator, who entrenches the right to life in Section 1 of your Constitution, demands it of you.
Yours Faithfully,
Dr. Thinus Coetzee
justicefortommy@gmail.com
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