Wednesday, 30 September 2009

DNA Testing and Unresolved Questions in Tommy Arthur's Case

By Special to The Birmingham News
September 27, 2009, 5:33AM

Once again, Tommy Arthur is about to receive an execution date. And once again, state Attorney General Troy King is standing in the way of DNA testing that could prove Arthur’s guilt or innocence.

It is a familiar — and troubling — series of events. Four times, Arthur has been scheduled to die, only to have a court step in and stop his execution. The state then spends weeks or months fighting efforts for DNA testing, and courts eventually set another execution date.

This time, the state attorney general wants everyone to believe that DNA testing has been conducted and that it somehow confirms Arthur’s guilt. That’s not true.

What is true is that not a single piece of physical evidence ties Arthur to the 1982 murder of Troy Wicker. The evidence against him boils down to the testimony of Wicker’s wife, who was sentenced to life in prison for killing her husband — but pointed the finger at Arthur in exchange for a reduced sentence.

It’s true that some DNA testing was finally conducted this summer. But the test results neither implicate nor exonerate Arthur. Testing on Judy Wicker’s clothing revealed only her husband’s semen; the hair was not tested. On one other piece of evidence, a wig apparently worn by whoever killed Troy Wicker, DNA testing could not yield a profile.

Ordinarily, when initial testing does not yield a profile, scientists conduct other, more sophisticated types of DNA testing. We have done this time and again at the Innocence Project, and the more sophisticated testing often yields a profile that can confirm guilt or prove innocence. In Arthur’s case, the state is blocking any further DNA testing.

Unfortunately, a rape kit from the case was destroyed years ago — a fact the state only revealed a few months ago. It is gone and cannot be subjected to DNA testing. This underscores the need to conduct all possible testing on the remaining evidence.

The state and courts have agreed that DNA testing could shed light on the case, but then stopped well short of conducting the very testing that could actually yield a profile.

To be sure, Arthur’s case is a complicated one. In July, a prison inmate came forward and claimed he killed Troy Wicker. Against the state’s objections, a court ordered DNA testing to show whether the inmate’s story was true. Arthur’s attorneys pursued the DNA testing, unsure whether the inmate’s story was true — but certain that full DNA testing has the potential to shed light on the case.

The attorney general wants everyone to think Arthur’s requests for DNA testing are a new, last-minute effort to avoid execution. In fact, Arthur has been asking for DNA testing since 2002.

DNA testing could show whether Judy Wicker’s initial story (that a man broke into the Wicker home, raped her and killed her husband) was true; it is entirely possible that she was telling the truth at first but lied after she was convicted. Testing could also show that someone else, hired by Judy Wicker or not, committed the crime. Full DNA testing could yield a profile that can be compared to evidence from other, similar crimes and apprehend a serial rapist or murderer.

It is also, of course, possible that full DNA testing could implicate Arthur. If that happened, serious questions about this case would be resolved, and the public would not be left wondering how a man can be executed without a trace of physical evidence connecting him to the crime.

Until then, there is every reason to wonder — to wonder whether Arthur is guilty, and why the state is so determined to block full DNA testing that could resolve this once and for all.

Jason Kreag is a staff attorney at the Innocence Project, which is affiliated with the Cardozo School of Law. For more information, go to

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