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AL: Tommy Arthur - Keeping evidence safe
Tue Aug 19, 2008 16:00
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Keeping evidence safe
By Stephanie Taylor Staff Writer
Published: Tuesday, August 19, 2008

DNA evidence could play a part in determining whether a man sitting on death row lives or dies by lethal injection.


Tommy Arthur was scheduled to be executed on July 31 for the murder-for-hire killing of his girlfriend's husband in 1981.

His attorneys contend that DNA evidence would conclusively prove whether Arthur was responsible, but prosecutors claim that it can't be located.

Across the nation, 25 states and Washington, D.C., have laws requiring local court clerks to preserve evidence presented at trial. Alabama is not among them.

Although the state Supreme Court and law enforcement agencies have policies in place to protect evidence, there is no statutory oversight.

In the Arthur case, Judy Wicker claimed that an intruder raped her at her Muscle Shoals home and killed her husband. But three different juries didn't believe the intruder story and found Arthur, her boyfriend at the time, responsible.

Days before Arthur was to be executed, a detailed confession from state prisoner Bobby Ray Gilbert gave the Alabama Supreme Court reason to delay the execution.

Arthur's attorneys have asked the Alabama Attorney General's Office to produce DNA evidence collected in the rape kit because modern analysis would indicate whether it matched Arthur, Gilbert or an unknown rapist. Attorneys with the Attorney General's Office say that they cannot find this evidence.

In many states, failure to keep track of evidence in a death row case would be against the law.

Although Alabama has no criminal statute that specifically addresses the issue, Rules of Appellate Procedure authorized by the state Supreme Court require circuit clerks to keep all evidence used during a trial and an index in the court file indicating where the evidence is stored.

Violating that rule could leave a circuit clerk in contempt of the Supreme Court, said Don Valeska, an assistant Attorney General.

The appellate rules, however, do not necessarily require all evidence collected in a case to be preserved, only that offered at trial.

The advent of DNA testing also has led law enforcement agencies and the Alabama Department of Forensic Sciences to create policies that ensure evidence is stored indefinitely as a tool to help solve crimes, although, again, no state law requires it.

The Innocence Project is a nonprofit legal clinic affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York City that is dedicated to proving the innocence of wrongfully convicted people through DNA testing.

The organization encourages and works with states to pass legislation requiring evidence preservation, especially in death penalty cases.

'One reason is to avoid a patchwork system,' said spokesman Eric Ferrero. 'There are counties that do a very good job, but there need to be statewide standards.'

I

n line with the Alabama Supreme C

ourt's rules, Tuscaloosa County Circuit Clerk Magaria Bobo said that she keeps all evidence in a v

ault at the county cour

thouse until a ruling is made on whether a case will be appealed.

T

he Tuscaloosa County Sheriff's Office and the Tuscaloosa and Northport police departments have policies for handling and storing evidence to ensure

that it's not lost or mishandled.

Investigators with the Tuscaloosa County Metro Homicide Unit document any pieces of evidence they collect, and document what it is and where it was collected before handing it over to the department's evidence custodian. The custodian enters the evidence into a computer, then prints a bar code and uses it to tag the evidence. Using this system, the custondian is able to find out where a piece of evidence is stored, when it is moved and when it is turned over to the court system.

Mike Sparks, director of the Department of Forensic Sciences, said that the agency has

saved DNA profiles from every test investigators have performed since 1994, when Congress passed a law giving the FBI authority

to create a national database of DNA samples.

'If we take a sample, of semen from a comforter, for instance, we find it, isolate it, extract it and we keep that extract forever,' Sparks said.

Those samples are catalogued and stored in facilities and can be accessed if needed. Before DNA testing was used, there was no reason to keep such samples, he said. A rape kit might indicate the blood type of an individual, but that alone would not provide a profile specific to that person like DNA does.

'Nobody had any clue in 1982 that there would be this type of technology,' he said.

Now, Sparks is pushing for legislation that would require that anyone found guilty of a felony submit to DNA testing.

'There's a finite subset of people who do a lot of these violent crimes,' he said. 'It's a huge public safety tool.'

Every Monday, the department runs a program to match unknown profiles with collected DNA on file. Last year, there were 456 matches, which Sparks said was the highest number per capita in the country.

Capt. Loyd Baker, commander of the Tuscaloosa County Metro Homicide Unit, said that the unit collected 717 pieces of evidence between April and June. That evidence includes sexual assault kits, blood samples and other biological evidence, as well as weapons and recovered property.

Baker said that the department is storing 24,590 pieces of evidence, the oldest dating back to a 1971 case.

The unit recently submitted evidence from 26 sexual assault cases from the 1980s and 1990s. Nine of those submissions matched people whose DNA was in the database. Results indicated that four of the submitted rapes were committed by the same person, although the person's name was not in the database and he couldn't be identified.

'This is why we keep the evidence,' Baker said, mentioning evidence from an unsolved 1989 murder from which investigators were recently able to obtain DNA samples. 'It took that long for the technology to become advanced enough to obtain a DNA profile.'

Tuscaloosa defense attorney Joel Sogol said there is a need to properly store evidence that could possibly clear criminals who maintain their innocence.

'It seems to me that what they keep would depend on the nature of the offense and the factual basis of the individual case,' he said.

He said that, more importantly, the Legislature should pass a law that would ensure death row prisoners a right to DNA testing before the sentence is carried out.

'I think it's outrageous that we don't have a law like that,' he said.

'That's an awfully easy out for the state, to not have to worry about whether they've made a mistake or not. It's counter to everything we talk about wanting to make sure that the people punished are the right people.'

Innocence Project research indicates that Alabama is one of seven states without a law providing a process for prisoners to get DNA testing of evidence used to convict them.

For years, state Sen. Hank Sanders, D-Selma, has unsuccessfully pushed legislation that would do that.

'We should be looking at all cases from the past where DNA could have cleared people,' Sogol said.

He mentioned death row inmate James McWilliams, who he represented in a 1985 capital murder case. The post-conviction attorneys working with McWilliams now cannot find DNA evidence that should be stored somewhere, he said.

According to the Innocence Project, more than 215 prisoners have been exonerated after biological evidence proved them innocent.

According to the organization, only two of the 215 were freed from Alabama prisons. Brothers Ronnie and Dale Mahan were convicted of the 1983 kidnapping and rape of a woman in Jefferson County, who was abducted from a shopping mall, forced to use drugs and raped several times. A jury convicted them in 1984 after hearing that the victim identified the brothers from a photo lineup and that the blood type of one of the brothers matched that of the perpetrator. Dale Mahan was sentenced to serve 35 years and Ronnie Mahan to life in prison. It wasn't until 1997 that DNA testing of semen and pubic hair, which had been stored for 14 years, proved the brothers innocent.

Attorneys with the Innocence Project have written a letter to Gov. Bob Riley, asking that he order a thorough search for the DNA evidence in the case. They stated in the letter that they have intervened in cases across the country in which prosecutors initially said evidence could not be found, and called it 'deeply disturbing' that evidence in a capital murder case could 'simply disappear.' The letter asks Riley to intervene.

'Failing to do so would do irreversible damage to the public's confidence in the state's criminal justice system and its elected officials,' the letter said.


Reach Stephanie Taylor at stephanie.taylor@tuscaloosa news.com or 205-722-0210.

http://www.tuscaloosanews.com/article/20080819/NEWS/49342/1007/NEWS02&title=Keeping_evidence_safe

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