Monday, March 26, 2012

The Impending (But Stayed) Execution of Tommy Arthur

Tommy Arthur sits on death row awaiting execution by the people of Alabama. The execution, recently scheduled for Thursday 29 March, has been stayed (possibly only briefly) as the parties argue over Alabama's execution protocol.

Arthur's case is complicated by multiple trials, ever moving execution dates, unstable accomplice testimony, favorable and unfavorable inmate testimony, last moment eyewitnesses, possible witness intimidation, a last moment confession from the alleged real killer, an offer to recant the confession in exchange for visitation privileges, legal tussles over DNA testing, lost and destroyed DNA evidence, inconclusive DNA test results, and less than accurate court documents provided by both the State and Arthur's defense team. This case is, in summary, a confusing morass of claims and counterclaims.

I will attempt to clarify all in this modest post, but I doubt I will succeed. In any case, at the end of this post, I will either oppose the execution or stand mute regarding it's propriety. I will do so based on whether or not I believe there is any reasonable chance of Tommy Arthur's factual innocence.

I begin by presenting the best summary of the case I was able to find. It is from a the adverse appellate decision of Arthur v. State (1996). I have changed the format of the presentation slightly to improve readability. I include my observations in brackets.
Thirteen witnesses testified for the state, the state's case being bottomed on the testimony of accomplice Judy Wicker, Wicker having been indicted and convicted by a jury verdict for the intentional murder of her husband, Troy Wicker. 
Wicker's conviction and life sentence were affirmed in May, 1983 at Mary Jewel Wicker v. State. Wicker was in state custody when she testified on Wednesday of the trial week. [Before her testimony, Wicker was serving a life sentence for the murder of her husband. After her testimony she was released on parole. Arthur's prosecutor had previously been Wicker's defense attorney.
Proceeding Wicker's testimony: 
Eddie Lang, sergeant with Muscle Shoals Police Department, testified about observations of Ms. Wicker's movements on the morning of the killing, February 1, 1982, and his observations of the house where the deceased was murdered. 
Joseph Gary Wallace of the Department of Forensic Sciences, lab director in Florence in 1982, testified about his observations at the scene, the gathering and transfer of physical items from a certain Buick Riviera vehicle 
Brent Wheeler and John Kilbourne of the Huntsville forensic lab testified about lab procedure. 
Joel Reagan, who ran a mobile home sales lot testified about the defendant's employment at his place of business. 
Talmadge Sterling, correctional officer at the Decatur Work Release Center, testified about defendant's residency at the center as did Pat Halliday, employed at the center, who testified about a discrepancy in the defendant's payroll records. [The summary seems to leave out a critical piece of inculpatory evidence. Because of discrepancies in Arthur's records, Arthur's clothing was searched. Twenty $100 bills were found in his pockets. Such a substantial sum would require some explanation from someone having such limited financial resources as did Arthur. More on this issue during the discussion of the defense witnesses.]
Pat Yarbrough Green, who testified that she became acquainted with defendant at Cher's Lounge (Ms. Green was employed at Cher's Lounge in "parole" status, having suffered several felony convictions); that defendant wanted to talk privately at the lounge; that in the kitchen he asked the witness, "Can you get me some bullets? Has to be .22 caliber mini mag long rifles."; that she enlisted the services of a third person to go across the street to buy the bullets; that the defendant gave her $10.00 for the bullets; that while waiting on the delivery of the bullets the defendant stated, "Someone will be killed in Tennessee. Don't worry, it won't be traced to us."; also, that defendant asked witness if she had access to "jars" or knockout pills and asked if she knew where defendant could get some jars/pills; that she gave the .22 bullets to the defendant. [I distrust this testimony because (1) it is snitch testimony, (2) possibly purchased by the State by threat or promise of favor, (3) uncorroborated though it could be corroborated by the third person who provided the .22 caliber rounds, and (4) the third person seemingly was not even identified, much less forced or allowed to testify.]
Debra Lynn Phillips Tynes, manager of Cher's Lounge and defendant's paramour, states that on the day of the killing the defendant was late for a lunch date, that ultimately defendant and she went for a car ride across the Tennessee River Bridge; that defendant stopped the car and threw into the river a "plain black garbage bag" wrapped in a sheet, stating that "I want to get rid of some old memories." [Being late for lunch is hardly evidence of committing murder early in the morning. On the other hand, the testimony about throwing the garbage bag into the river seems quite inculpatory.]
Dr. Pirl, toxicologist, stated that there was no ethanol in the deceased's body nor could he detect any narcotics. 
Dr. Aquilar testified as to cause of death; that deceased was shot at close range through the closed right eye.
James Otis Garrard, clerk of the circuit court of Marion County testified regarding ... court documentation reflective of defendant's prior conviction for second degree murder. 
Judy Wicker, who at the time of her testimony in the latest trial resided at a work release center in WetumpkaTidwell Homes; that she and Teresa discussed killing Troy in early 1981; that several conversations occurred between she and Teresa regarding killing Troy; that there was $90,000 worth of life insurance on Troy's life; that the defendant Arthur called her by phone and stated "I'm hired to do a job -- kill your husband'; that about one week after the phone call she and Arthur met at Arthur's father's house or at Reagan's Mobile Homes; that there were sexual encounters between she and Arthur; that she knew the day of February 1 that this was the day her husband was to be killed; that the night preceding the killing she, her husband and Teresa had a drinking party at the Wicker home; that she dropped the children at school on February 1, met ... her sister, finally getting together with Teresa "out by the airport"; that Teresa was driving a Riviera; that defendant was with her, "made up" to look like a black man -- face blackened, wearing an Afro wig and gloves; that Arthur got out of Teresa's car and into her car; that she smelled alcohol on his breath; that he had a pistol plus a garbage bag; that en route to the Wicker home she asked Arthur not to "do it," "I'll give you money or whatever"; that Arthur stated "The SOB deserves to die"; that she had left her husband in bed asleep; that upon entering the house defendant began destroying things. "We went to the bedroom, I ran but I heard the shot. I ran to the utility room --"; further, that she ended up in the den, receiving a blow to the head "battering my head badly, knocking out some teeth, upper lip cut into my nose. I didn't have an upper lip."; that previously it had been established that she was to say that her and Troy's home was burglarized and she was assaulted by a black man; the first persons she saw on regaining consciousness were her sister and a detective; that after the killing she and Arthur continued to talk, go places together; that upon receipt of the insurance money witness paid Arthur $10,000, paid her sister, Teresa, $6,000 and Theron McKinney received some jewelry and a Trans Am automobile. [In her previous 7 sworn statements, including her own trial, Wicker swore under oath that she had been attacked and raped by the murderer, a black man, obviously not Arthur. Clearly, Wicker would lie under oath, either previously or during the Arthur trial(s), to save her skin. Her testimony, in my opinion, demands substantial corroboration. I find it disturbing also that neither her sister nor brother-in-law were charged for their role in the murder. If Wicker's testimony was true, it was her sister that orchestrated the murder. I find it suspicious that Arthur's prosecution used to be Wicker's defense attorney.
Witness Wicker was thoroughly cross-examined by defense counsel as to the prior contradictory statements she made to the police and under oath at her trial, as to what she expected to gain from testifying. [According to several sources, Arthur's court appointed attorney was, by Alabama state law, limited to no more than $2000 remuneration for a capital case.]
The defense case featured four witnesses: 
Officer Coan, a scene witness. 
Bruce Carrol, an inmate at St. Clair prison who stated he lost $6,500 to the defendant in a poker game. [I find this difficult to believe. I'm loath to rely on snitch testimony, whether or not the inmate hopes to benefit from either the state or the defense.]
Ronald Spears, an inmate at West Jefferson prison who stated that Patsy Yarbrough Green had previously stated to him "The cops told me to lie on Tommy regarding the .22 bullets". [Once again, it's always difficult to tell  which snitch might be telling the truth.]
Gene Moon, residing in Cullman County Jail, stated that "Inmate Murry gave me an envelope with $2,000 in it and I put it in Tommy's coat," thus accounting for the defendant's possession of an inordinate amount of currency at the work release center. [This seems inconsistent with the defense's earlier claim that the money was found in Arthur' clothing because he had won it in a poker game, with another inmate.
The defendant did not testify. [The defendant has a Constitutional right to not testify. The invocation of such a right is neither inculpatory nor exculpatory.]
This case is wafer thin on forensic evidence and profoundly thick with accomplice and snitch testimony. As a juror, I would be forced to decide it the State sufficiently corroborated Wicker's story by the testimony that Arthur, soon after the murder, threw a garbage bag in a river and that $2000 were found in his clothing. I would find the defense's conflicting arguments about the source of the money to be counterproductive to their case. Though I would need far more of the trial testimony and exhibits to reach a verdict, I can envision that I would have voted guilty beyond a reasonable doubt.

Three separate juries did find the evidence sufficient, though I argue frequently that juries tend to be too compliant and insufficiently skeptical.

Three substantial developments followed the three trials. The defense located two alibi witnesses who affirmed that Arthur was with them at the time of the murder; an inmate confessed to the murder of Troy Wicker; and DNA evidence from the crime scene tested negative for Arthur's DNA. I'll consider the developments in turn.

In 2002, the owner and an employee of Copper Mobile Homes each provided Arthur's defense team with an affidavit claiming that Arthur had been with them on the morning of the murder. Since their business was located 75 miles from the scene of the murder, their recollections, if honest and accurate, would exonerate Arthur. Their stories were strikingly similar in detail, though each claimed they had not spoken with the other prior to providing their affidavit.

Each person claimed that Arthur, in an effort to gain employment, offered to help them deliver a mobile home to Birmingham and help set it up. They declined. The next day, they each heard of the murder, but thought little of it. After Arthur was arrested for the murder, they talked about how he been with them on the morning of the murder. They did not mention to the police, or the prosecution, or the defense because no one asked. They agreed to sign the affidavit 20 years later only because Arthur' defense team had finally asked each of them (independently) to do so.

Not long thereafter, each affiant provided an additional affidavit, this time to the State, essentially recanting what they had said in their affidavits to Arthur's defense team. One person claimed he was heavily medicated. The other said that, upon further consideration, he cannot be sure of the date on which they spoke with Arthur at Copper Mobile Home.

Not long thereafter, the defense team provided affidavits strongly suggesting that the two witnesses had been intimidated by the state to recant. Of the three sets of affidavits, I find the last set most likely to be true. In other words, I suspect (but cannot prove) that the mobile home witnesses were incorrect (or untruthful) about being with Arthur that specific morning, and that the State improperly applied substantial pressure and threats to get them to recant.

In 2008, Bobby Ray Gilbert confessed to killing Troy Wicker. Gilbert's confession, if honest and accurate, would exonerate Tommy Arthur. Gilbert's confession nicely fit Judy Wicker's later version of the murder except that Gilbert, rather than Arthur, was the hired killer. Part of Gilbert's claim was that he and Judy Wicker engaged in unprotected sex after the murder. Gilbert, who was serving life without parole for another crime, confessed once he learned that he was ineligible for the death penalty due to his age at the time of the crime.

In 2009, based in large measure on the confession of Gilbert, the DNA evidence still remaining from the crime was finally tested. No usable results were obtained from the wig. The only significant results came from small samples of semen located in Judy Wicker's jeans and underwear. That semen tested positive for Troy Wicker, negative for Tommy Arthur, and negative for Bobby Ray Gilbert. The DNA finding corroborates Judy Wicker's prior claim that she had sex with her husband soon before he was killed to provide evidence of a recent rape. She did not, of course, realize at the time that DNA testing would later prove or disproved her story.

After the DNA testing and an evidentiary hearing into Gilbert's confession, the Court found not only that Gilbert's confession was false, but found that Arthur had committed a fraud on the Court. The Court found that Arthur slowly fed details of the crime to Gilbert by passing him notes. The Court found that Gilbert was offered and anticipated several benefits in return for his confession. The Court found, substantially in my opinion, that Gilbert offered to recant his confession in return for increased visitation privileges.

I find reasonable the Court's detailed argument that Arthur perpetrated a fraud via Gilbert's confession. Coupled with the conflicting inmate testimony about the origin of the $2000 in Arthur's clothing, I suspect that Arthur also orchestrated the affidavits of the two post-conviction alibi witnesses.

Much of the information I've relied upon for this post comes from Tommy Arthur's web site. I refer you to that site for a more stout defense of his case. Based on my review of the evidence, however, I believe that Tommy Arthur did indeed murder Troy Wicker. With respect to the propriety of his execution, I therefore stand mute.

For other cases in which I study and reject superficially compelling claims of factual innocence, see my posts on Cleve Foster and Steven Woods.

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