Letter to Governor Riley - 30 October 2007

30 October 2007

Governor Bob Riley

Dear Governor Riley,

This is my sixth letter to you. In my last letter, I invited you to answer me by email, if you should wish to do so. My offer remains open for you to either answer via email to justicefortommy@gmail.com or to post your answer as a comment on my blog at www.justicefortommy.blogspot.com.

During September 2006, at the Birmingham Jefferson Convention Complex, President George Bush said:

“Thanks for coming. It is a joy to be back in Alabama. And I appreciate your warm welcome. I am proud to stand with one of the nation's finest governors, and ask for your help in reelecting Bob Riley as Governor of Alabama. He deserves to be reelected because he's got a record he can run on. He has made you proud. He LISTENS to the people. He shares your values for the good of Alabama and for the good of all citizens, regardless of their political party. Bob Riley needs to be reelected as your governor.” (emphasis added)

A few questions arise from this:

Why are you not “listening” to Sherrie Stone, Arthur’s daughter, in granting her the courtesy of a face-to-face meeting with you?

Why would such a meeting “not be necessary”, as advised by your assistant?

Why are you denying Barry Scheck of the Innocence Project a meeting?

Why are you not “listening” to Peggy Wicker Jones, as a victim whose rights you say you prioritize, in requesting you to have the DNA in Arthur’s case tested?

Is this “listening to the people” or did President Bush make a mistake when he said this?

In “sharing the values for the good of Alabama and for the good of all citizens”, why are you not paying heed to the majority of Alabamians in their opinion that “the death penalty system in Alabama is flawed” and that “innocent persons could possibly be executed”?

In “sharing the values for the good of Alabama and for the good of all citizens”, why is the lethal injection protocol not open for all Alabamians to inspect or comment on?

In “sharing the values for the good of Alabama and for the good of all citizens”, why, in the face of investigations into the death penalty in Alabama indicating flaws, are you not ordering a moratorium, until a proper review can be undertaken?

Troy King made the following statements during October 2007 (Alabama Voices: DAs wrong on law - 19 October 2007) (emphasis added):

“Whether 30 DAs or 42 DAs call for me to do so, I will never turn my back on Alabama's VICTIMS”

“I take my stand with the law and with the VICTIMS of crime. Together, we say that there is still right and there is still wrong. And we make no apology for it.”

“I have been proud to enforce the law and honor VICTIMS by personally making the sentencing arguments and winning justice for them.”

“It is time to mean what we say, and what we must say is: No more. No more standing with criminals. No more excusing criminal conduct. No more coddling criminals. No more standing against VICTIMS.”

He further said on 29 October 2007 (WTVYNEWS24) (emphasis added):

"It is not time to study the death penalty, it is time to be about the business of doing justice. The American Bar Association ought to be ashamed for siding with criminals over VICTIMS and law abiding citizens."

Now, as AG Troy King is so concerned about the rights of victims (which he should be), I want to ask the following questions of him:

“Mr. King, why are you then not listening to the VICTIM'S FAMILY in the Troy Wicker murder case, where Peggy Wicker Jones is asking of you to give her closure and peace of mind, by having the DNA in the case tested? Are you “honoring” Troy, as a VICTIM, by denying this request? Are you standing “with” or “against” her in denying her this request? Are you “facing” her or are you “turning your back” on her in denying her this request?”

Governor, on November 19, 1863, at Gettysburg, the great Abraham Lincoln said:

“Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”

“It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.”

Senator Daniel Webster of Massachusetts, in January 1830, said:

"This government, Sir, is the independent offspring of the popular will. It is not the creature of State legislatures; nay, more, if the whole truth must be told, the people brought it into existence, established it, and have hitherto supported it, for the very purpose, amongst others, of imposing certain salutary restraints on State sovereignties."

In his reply to Senator Robert Y. Hayne of South Carolina, he described the federal government as: "made for the people, made by the people, and answerable to the people."

Governor Riley, Attorney General King, your words and eloquent speeches might be in accord with the fine words of these great statesmen, but your actions belie it. Grandiosity and grandstanding might attract votes, but it detracts from the true purpose of a leader…to be transparent and, at all times, remain answerable to the people who put the leader in this position.

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 Arthur’s case and to stand by your undertakings to be for the rights of VICTIMS, by granting the request of Peggy Wicker Jones. 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

Letter to 11th Circuit Court of Appeals - 25 October 2007

25 October 2007

Honorable Judge Gerald Bard Tjoflat
Honorable Judge Rosemary Barkett
Honorable Judge Charles R. Wilson

United States Court of Appeals – 11th Circuit

Your Honors,

I am writing to you from South Africa, in order to personally thank you for your decision in Siebert vs Allen, issued on 24 October 2007.

I especially want to thank you for seeing the motive behind the US Supreme Court’s decision in Baze vs Rees in granting certiorari, convincing you to stay the execution of Siebert. I think I join the wide world out there in thanking you for waiting for an outcome as to the constitutionality of execution by lethal injection.

It is wonderful to see that there are still those out there that will not be swayed by party politics and personal agendas but that can still acknowledge, in the words of Judge Tjoflat, “that the balance of the equities dictates that a State’s interest in timely enforcement of a death sentence must yield to further consideration of the merits that the three-drug protocol, as applied, would violate constitutional rights.”

The task ahead for you will not be easy but I take heart that the right decisions will ultimately be made in your country, as we were faced to make in the revision of our own death penalty in South Africa during 1995. The outcome in our country, to abolish the death penalty as being cruel and not superceding the right to life, did not favor everybody but, in essence, we deemed it to have been the right thing to do.

Thank you for doing the right thing in the present case. I pray that you be strengthened in your resolve in other similar cases in the time ahead.

Yours Sincerely,

Dr. Thinus Coetzee
www.justicefortommy.blogspot.com
justicefortommy@gmail.com

Letter to Governor Riley - 25 October 2007

25 October 2007

Governor Bob Riley

Dear Governor Riley,

This is my fifth letter to you. I would be dishonest if I said that I wasn’t elated, close to midnight last night, when the news came through that the 11th U.S. Circuit Court of Appeals used Baze vs Rees as the basis on which to order a stay in the Daniel Lee Siebert matter.

Not that I condone what Siebert did and confessed to and should be punished for. I am just plain and downright against any form of punishment that involves dubious measures, like your lethal injection method, which can be questioned as to its effectiveness and application. Isn’t this what Baze vs Rees is about and which the 11th Circuit has now joined? Let’s face it; the trend seems to continue to have a moratorium in place until the US Supreme Court rules in this instance.

Are they right in doing this? Oh Yes, they are. Why? Because there is so much controversy between the various States, regarding the lethal injection method of execution. It is just a shame that grown people cannot find a method of agreement, other than the highest court in the US and that politics, power plays and grandstanding are paramount in many government circles.

Referring to the above, I can agree with you in a quote you gave a while back:

“God looked down on this country because this country was founded on the rock and that rock was our Lord and Savior Jesus Christ. And when the storms came and the rains came, the rock, it did not move. But over the last 15 or 20 years, something began to erode.”

I think the erosion you are talking about is man’s selfishness, self-centeredness and lust for power. Every day the tabloids shout it out, so much so that we even hear it here in South Africa!!!

You gave a perfect solution in one of your quotes:

“I ask you: turn a deaf ear to the special interests. Let politics stand down for a while. Don't waste anytime thinking about future elections until we've done our jobs here.”

I think this is also the solution regarding the ever-present debate concerning the death penalty and the application of execution methods. Let politics and self-interest stand down and work together until a common solution applicable to ALL States, are found. Would you agree, Governor?

As you said:

“It's time to take action - to put into practice a new approach that focuses on results and measurable improvements.”

Today I ask you to heed and be true to your own words:

“One person can make a difference. In fact, it's not only possible for one person to make a difference, it's essential that one person makes a difference. And believe it or not, that person is you.”

I’m asking you to “make a difference”, Governor; a difference in the sense that you will move past the power plays in Alabama and finally ensure transparency, justice and honesty. I ask you to declare a moratorium until a workable solution to the death penalty is found in Alabama.

I am aware that the majority of your citizens support the death penalty but they also support a moratorium, based on various issues such as facts that innocent people might be executed, that post-conviction DNA testing should be mandatory and that the whole issue of the death penalty is broken and needs to be revised.

Are you going to “make the difference”, as you say, Governor? Will that person be you?

Attached please also find a letter addressed to the judges who made the ruling in the Siebert matter. They deserve to be thanked.

In ending and as in all my letters, I AGAIN thus ask you, for the sake of decency, humanity, mercy and justice, to allow DNA testing to be done in Thomas Arthur’s case and to open up your death penalty lethal injection protocol for your citizens to inspect, in order to avail themselves of the opportunity to either join or refute your standing that it complies with the 8th Amendment. 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

Letter to Governor Riley - 23 October 2007

23 October 2007

Governor Bob Riley

Dear Governor Riley,

This is my fourth letter to you. In order to make it easier for you to answer any of my letters, should you decide to do so, kindly either post a comment on my blog at www.justicefortommy.blogspot.com or you can also send it via email to justicefortommy@gmail.com. All my letters to you are reflected on my blog.

I was quite disappointed to note that you are still adamant to continue with executions in your State, irrespective of the stays ordered by the US Supreme Court, the decisions of other Governors of State and the various courts. I fail to see how this cannot, at least, convince you to postpone executions.

In the particular case of Thomas Arthur you keep using the words “overwhelming evidence”. In my mind, the word “overwhelming” means totally and utterly beyond ALL doubt, not so?

We know this is not the standard though. The standard is beyond all REASONABLE doubt. We also know that many interpreters differ in defining “reasonable doubt” and that juries more than often do not understand this concept.

My personal favorite is an explanation given by a Public Defender friend in Dallas, Texas, whose explanation of “reasonable doubt” makes a juror’s eyes light up in understanding.

He explains it as such:

"So when you're back there deliberating about this case, think about this: not sure if he did it? Not guilty. Think he might've done it? Not guilty. Think he did it? Not guilty. Pretty sure he did it? Not guilty! You've got to believe beyond all reasonable doubt that he did it, to get to guilty. We're not talking about hair-brained, far-fetched doubt. But if anything our witnesses said made reasonable sense, that's reasonable doubt. If the State's stories have any holes, that's reasonable doubt. We ask that you return a verdict of not guilty."

Are you aware that after Arthur’s trial, some jurors mentioned that they would have voted differently if they were presented with the new evidence that Arthur could have been at another location at the time of the murder and also that the DNA evidence was never tested? In other words, they would have had reasonable doubt. How does this now tie up with your statement of “overwhelming evidence”, Governor?

I am also aware that a letter was written to you recently by Debbie Murphree of Alabama, asking you to explain the “overwhelming evidence” you base your argument on. I am also aware that you have not, as yet, answered her letter. Can you make time to explain this term, Governor? In detail? By your own words and undertaking prior to your re-election, you are bound to do so and to answer your citizens, Governor.

In this, I refer to your statements as to “transparency, openness and honesty” in your “Plan 2010 – Our vision for Alabama”, where you say:

“Of all the things we have accomplished during the past four years, I am most proud of the fact that our administration has operated in an open and honest way. We brought together a world-class cabinet and gave them one order—in every instance, do what is right.” (page 18)

“Our Goal: By 2010, Alabama will be recognized as the most open, honest, and accountable state in the nation.” (page 18)

“If there is one program that embodies the transparency and accountability our administration has brought to Montgomery, it is SMART Governing. SMART stands for Specific, Measurable, Accountable, Responsive, and Transparent—and we have made it the new mantra for state government.” (page 19)

“SMART Governing will set the tone for transparency and accountability in government that taxpayers have been demanding for years. This is our administration’s boldest step yet in building trust in Montgomery.” (page 20)

“One of the state’s most fundamental duties is to protect its people, and we have always made this responsibility a top priority. Having six grandchildren, I can tell you that I am constantly reminded of the potential dangers that threaten our communities.” (page 35)

“Our administration has made great strides in making Alabama a safer place to live, and we will never stop working to protect our citizens.” (page 35)

“Our Goal: By 2010, we will improve the safety of people and property through an aggressive focus on preparedness, enforcement, and rehabilitation.” (page 35)

“And our belief that decisions affecting individual Alabamians are best made by those individuals and their families without government getting in the way gives us a strong sense of community.” (page 42)

“The job of state government and its employees is to serve the hardworking people of Alabama in a manner that is worthy of their investment and representative of their values.” (page 42)

Having quoted all that, the following questions arise:

1. As you recently changed your protocol for the death penalty by lethal injection and also prior to that, why have you never divulged the contents of the protocol? Would it not be “transparent” for you to do so, in light of your undertaking of being transparent?

2. Why are you not having the DNA evidence tested in Arthur’s and other cases, leaving the potential to arise that another murderer could still be at large? Would this not be in line with your undertaking of it being your “most fundamental duty”, which is to protect your people?

3. Does your order to, “in every instance do what is right”, include the testing of DNA, which is similar to the undertaking given by District Attorney Craig Watkins in Texas to have DNA tested in felonies as far back as 1970 or do you not deem such testing to be included in “do what is right”?

4. Having received the investigation of the American Bar Association as to the failures in your Death Penalty System, would you deem it “honest” to NOT investigate their findings and admit any failures of the system and institute measures to correct it, as is presently the case in Alabama? As a side note; failure to admit deficiencies in a system, in the face of “overwhelming evidence”, is tantamount to dishonesty. In Psychology it is called “denial”, Governor.

5. As the majority of Alabamians, in a poll, have voiced their concern as to the possibility of innocent persons being executed and possible innocent people being on deathrow, would it be representative of their values and concerns to NOT listen and NOT do something about it? I did see in your plan that you do say that “accountability” is a big 2010 goal, Governor.

6. As the majority of Alabamians, in fact 80%, in a poll, have indicated that reform of the death penalty procedure is need, would it be representative of their values and concerns to NOT listen and NOT do something about it?

Based on what you said in your 2010 plan and what is the current status quo, seems to be miles apart, Governor. Can you explain this or is it simply a case of political campaign promises and nothing else?

Lastly, your failure and denial of the testing of DNA evidence in the Arthur case, is this true justice or rather a case of “just us”, Governor?

I AGAIN thus ask you, for the sake of decency, humanity, mercy and justice, to allow DNA testing to be done in this case and to open up your death penalty lethal injection protocol for your citizens to inspect, in order to avail themselves of the opportunity to either join or refute your standing that it complies with the 8th Amendment. 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

Letter to Governor Riley - 17 October 2007

17 October 2007

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

Letter to Governor Riley - 16 October 2007

16 October 2007

Governor Bob Riley

Dear Governor Riley,

This is my second letter to you. I doubt that I will ever get an answer from you but I will keep writing as I do not want to one day face the Creator, mentioned in Section 1 of your Constitution, and explain to Him why I did not do something regarding the injustice meted out to Thomas Arthur.

Why do I term it being an “injustice”, Governor? The word “injustice” is defined as “a violation of another's rights or of what is right; lack of justice, a specific unjust act; a wrong.”

The great Roman Statesman, Lucius Annaeus Seneca, in 5BC, said: “A kingdom founded on injustice never lasts.”

What would thus be right in the matter of Thomas Arthur, ensuring that the “Kingdom of Alabama” will last?

The answer is right before our eyes…allow him to have the DNA tested!

Again, what do you have to lose? A few votes?

Conversely, what do you have to gain? For one…respect as one who ensures that the right decisions are made when it comes to the well-being of the citizenry of Alabama. Thomas Arthur is also a voter and a citizen of Alabama, not so? He must also be treated equally to the other citizens, not so?

In looking at what you could gain from this, the possibilities outweigh any negatives that might pose itself! If the DNA proves that he had sex with Judy Wicker, you could wave the results in the air and scream out to the world: “Guilty, guilty, guilty!!!” Then you have a 100% right to drag him off to the gurney!!! However, if the DNA proves that he did NOT have sex with her and that the blood on her garments does not come from him, you could wave the results in the air and scream out to the world: “I made the right decision and prevented an injustice!” Your popularity will most certainly rise to a tangible level.

Likewise, imagine if you could then, through getting a hit on the DNA database, identify another suspect. The accolades would be endless!!! Isn’t this what politics is actually about?

In the same vein, it would give closure to the family of Thomas Arthur AND the family of Troy Wicker, who also wrote to you to demand DNA testing. Did you receive the affidavit of Peggy Wicker Jones in this regard, requesting, for the sake of the truth and closure, that DNA testing be done?

But, this will not happen if DNA testing is never done.

At this moment, Thomas Arthur is in a small room, fretting and fearing. Yes, every death row inmate fears the day or reckoning, Governor, especially him, as there are “unresolved matters” impacting on his situation. I can imagine how he must feel, as I have seen it so many times in the past in our country.

I think you will agree that living on death row is a traumatic experience in itself, whether or not it results in execution.

Amnesty International in 1989 made the following statement:

“The cruelty of the death penalty is not restricted to the actual moment of execution. Its unique horror and one which cannot be relieved by developing more "humane" methods of killing is that, from the moment the sentence is pronounced, the prisoner is forced to contemplate the prospect of being taken away to be put to death at an appointed time.”

As such, deathrow is a place whose sole purpose is to preserve those who live there so that they may be executed. While the condemned live there, they are the “living dead”, not so?

A study done in 1981 found that prisoners under sentence of death are intensely preoccupied with the thought of execution. They are anxious about how they would behave during the walk to the death chamber, whether they would break down, whether the execution would be painful, and how the memory or image of the execution would affect their families. For many prisoners, these and similar thoughts become obsessive. Some prisoners have recurring and vivid nightmares in which they go through the execution process step by step.

Coupled with this, in the case of Arthur, would be the dread of doubt, trying to convince you to have the DNA tested, faced with your words that “Thomas Arthur would be executed after the 45-day stay expires.”

I would like to elaborate on this by quoting from studies and what great Judges in your country said in the past.

Article 4 of the African Charter of Human and People's Rights provides:

“Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right." (emphasis supplied)

Suffolk District v. Watson and Others, 381 Mass. 648, 663 (1980) (Hennessy, CJ.) (plurality decision holding the death penalty unconstitutionally cruel under the Massachusetts State Constitution).

"While this court has the power to correct constitutional or other errors retroactively...it cannot, of course, raise the dead."

Brennan J in Gregg v. Georgia.

“The fatal constitutional infirmity in the punishment of death is that it treats "members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.”

Furman v. Georgia 408 US 238 (1972) Brennan J observed:

"In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the [Cruel and Unusual Punishments] Clause - that the State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others." (emphasis added)

In this, I want to ask you two questions, Governor Riley:

“For which reason are you denying Thomas Arthur DNA testing, while other states allow mandatory DNA testing? Can you see that your decision to deny DNA testing, without giving a valid reason, could be seen as inflicting the severest of punishment upon Thomas Arthur, which other States would not have done? ”

Furman v. Georgia 408 US 238 (1972) Stewart J observed:

"The Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed"

In Callins v. Collins, cert. denied, 114 S.Ct. 1127, 127 L.Ed 435 (1994) Blackmun J filed a dissenting opinion. In it he observed that:

"[a]lthough most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be
administered consistently and rationally, it must not be administered at all." (emphasis added)

Blackmun J added, in the Furman aftermath:

"[i]t soon became apparent that discretion could not be eliminated from capital sentencing without threatening the fundamental fairness due a defendant when life is at stake. Just as contemporary society was no longer tolerant of the random or discriminatory infliction of the penalty of death ... evolving standards of decency required due consideration of the uniqueness of each individual defendant when imposing society's ultimate penalty ... [T]he consistency and rationality promised in Furman are inversely related to the fairness owed the individual when considering a sentence of death. A step toward consistency is a step away from fairness".

In my view, Governor, both consistency and fairness would determine that you follow what other States are doing, mandatory DNA testing, otherwise it could be termed, in the bluntest of manners, as “the tail wagging the dog”!!!

I AGAIN thus 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

Letter to Governor Riley - 15 October 2007

15 October 2007

Governor Bob Riley


Dear Governor Riley,

I am writing to you from, what you would term, a “third world” country, South Africa. However, what makes us a “first world” country in this instance is that we, on 6 June 1995, abolished the death penalty, holding that “everyone, including the most abominable of human beings, has the right to life, and capital punishment is therefore unconstitutional.” You are welcome to read this landmark case opinion in our country at http://www.constitutionalcourt.org.za/uhtbin/hyperion-image/J-CCT3-94.

In using the words “in this instance”, I am referring to the matter on which you must have received thousands of emails, letters, telephone calls, etc…the fact that you are denying Thomas Arthur the opportunity to have DNA testing done, at his own cost. I thus take it that your denial of this is NOT as a result of spending and that your motivation is outside the monetary sphere.

I again refer to our decision to abolish the death penalty and respectfully draw your attention to the words of the last paragraph of the opinion of our Constitutional Court…” everyone, including the most abominable of human beings, has the right to life”. I think you will agree that this is similar than Section 1 of your Constitution in Alabama viz. “That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.”

Likewise, I draw your attention to Section 2 of your Constitution, which states “That all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit…” I take it I would be correct in interpreting that “the people” referred to, throughout, your Constitution, would include Mr. Thomas Arthur and that such Government would be instituted for his benefit as well, not so?

I also wish to refer you to Section 6 of your Constitution, which uses the term “due process of law”. I take it this would apply to Mr. Thomas Arthur as well, not so?

I further refer you to Section 7 of your Constitution, which ends with the words “legally applied”, which I assume would apply equally to Mr. Thomas Arthur, not so?

In addition, would I be right to presume that Section 13 of your Constitution, containing the words “That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.”, would equally apply to Mr. Thomas Arthur?

Am I also right in interpreting that Section 17 of your Constitution, which states “That the privilege of the writ of habeas corpus shall not be suspended by the authorities of this state.”, would be an inalienable right of Mr. Thomas Arthur?

I also looked at Section 35, which states “That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.”, which I presume applies to Mr. Thomas Arthur as well, not so?

Lastly, am I right is presuming that Section 36, which states “That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.”, would apply to Mr. Thomas Arthur as well?

Questions thus arising from the above Sections of your Constitution are:

Would you agree that your denial/delay to allow Mr. Thomas Arthur to have DNA testing done, at his own expense, would be a violation of due process, in terms of Section 13 of your Constitution and that your actions, as the ultimate custodian of the Constitution, by denying/delaying this, would be unconstitutional in terms of this section? The words of Section 13 do say “SHALL HAVE”, not so? Why is he not “having” this then?

Would you agree that your denial/delay to allow Mr. Thomas Arthur to have DNA testing done, at his own expense, would be contrary to Section 35 of your Constitution as you, as the ultimate custodian of the Constitution, are not protecting him, as to his rights entrenched in the Constitution? Section 35 does say that it is the sole object and only legitimate end of Government, not so?

Would you agree that your denial/delay to allow Mr. Thomas Arthur to have DNA testing done, at his own expense, would be contrary to Section 36 of your Constitution, as his rights are being “impaired” and “denied” and that your denial/delaying of such testing is an encroachmentguarding against, as is said in Section 36?

Would you agree that your denial/delay to allow Mr. Thomas Arthur to have DNA testing done, at his own expense, would be contrary to Section 1 and that you are violating the “inalienable rights endowed by our Creator” as to “the right to life?”

Governor, let’s look at a few facts…

FACT 1

You have a situation here where a witness, having received a life sentence for murder, suddenly, after years and years of denying Arthur’s involvement, now implicates him. Why did she wait so long? Why did she only come forward AFTER promised freedom? Does this not create ANY“reasonable doubt” is “a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case.” I mean, we are talking about a life/death situation here, aren’t we? Shouldn’t one look at ALL the evidence, even that which creates ANY doubt, in order to ensure that a person is not killed innocently?

FACT 2

In referring to the above witness, she firstly alleged she was raped by someone and then changed it to “Arthur had sex with her”. In my mind, by testing the DNA of the rape kit, it would either confirm what she said, if Arthur’s DNA is found or it would confirm that Arthur did not have sex with her and that she was possibly lying. In the first instance, if it is Arthur’s DNA, inject him. She was right. In the second instance, if it is not Arthur’s DNA, she was lying and could have been lying all along, concerning his involvement. In addition and in the second instance, you would then be in a position to run the results through your DNA database and then possibly identify a new suspect, not so? Why take the chance of killing him and not knowing whether she actually talked the truth or not?

FACT 3

She had blood on her. Now we all know the extent of her injuries and the fact that, invariably, a rape victim would have put up a struggle and that DNA from the perpetrator, in the form of skin flakes or blood, could have landed on the victim. It can be tested for DNA, not so? Again, by testing such items of clothing, one would know if she was lying or not, not so?

FACT 4

Two impartial witnesses came forward and made statements that Arthur was seen by them the morning of the murder, placing him well out of range of the act. ONLY after visits from the Prosecutor’s offices, did they change their statements. Now, don’t you think that Arthur has the right to explore this, especially the lame excuses they gave in their second statements, changing the original statements made?

Governor Riley, one of the most respectful incidents happened a while ago in Texas, known as the top “killing state” in the USA, when District Attorney Craig Watkins has agreed to allow the Innocence Project of Texas to review whether DNA tests should be done in any of the cases of 354 people convicted of rapes, murders and other felonies as far back as 1970. His reason? "It's just simply the right thing to do."

Governor, it is FACT that more than 190 people have been cleared nationwide through genetic testing since the first post-conviction DNA exoneration in 1989. Doesn’t this say something to you?

In my view, your letter stating that “there is overwhelming evidence against Arthur”, which I don’t believe there is, is now starting to be weighed up against the call for mercy, justice and decency, in the face of the facts aforementioned.

I thus 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