Texas Inmate Gets New Death Date

Two and a half months after George W. Bush granted the one and only reprieve of his Texas governorship to a death row inmate, a judge on Tuesday set a new execution date for convicted child-killer Ricky Nolen McGinn.

DNA tests performed by the state, the FBI and a defense expert all pointed to McGinn as the source of evidence taken from his 12-year-old stepdaughter--who was raped and murdered in 1993. Within hours of the release of the test results Tuesday, state Judge Stephen Ellis ordered that McGinn, 43, be put to death Sept. 27.

“The DNA test results confirm the jury’s verdict that the defendant is guilty of raping and murdering his stepdaughter,” Bush said in a statement. “I recommended the reprieve of execution because it was important, in this case, that biological evidence be tested to help determine the defendant’s guilt or innocence of the rape charge.”

Under Texas law, McGinn was eligible for the death penalty in the case because he was convicted both of raping and murdering Stephanie Rae Flanary. A conviction on the murder charge alone would have limited his possible punishment to life in prison.

DNA evidence played the opposite role in another Texas case Tuesday, as Roy Wayne Criner--who had spent more than a decade in prison on a rape conviction--was freed in advance of a planned pardon by Bush. Tests last month on a cigarette butt found at the scene of the rape revealed DNA that did not come from the 35-year-old Criner. The Texas Board of Pardons and Paroles voted, 18 to 0, in favor of a pardon.

The death penalty has emerged as an unexpectedly hot topic this election year, after disclosures of death row inmates and others being cleared by new DNA testing methods.

Illinois Gov. George Ryan in January placed a moratorium on executions in his state, and the New Hampshire Legislature recently voted to abolish the death penalty there--a decision vetoed by the governor. Several polls have shown a decline in support for the death penalty nationwide.

So Bush, who has overseen the execution of 139 inmates in his more than five years as governor, was under great scrutiny when McGinn’s case came before him last spring.

At the time of the murder, DNA tests on a pubic hair found on the girl and on a semen stain from her clothing were inconclusive. McGinn’s defense attorneys asked for more modern tests to be conducted.

McGinn already had eaten his last meal and was 18 minutes from a lethal injection when Bush exercised his authority to grant a one-time reprieve.

On Tuesday, the state Department of Public Safety said its test on the semen stain showed the chances that it came from someone other than McGinn were 1 in 65 quadrillion. A defense expert found a 1-in-53-billion chance that the semen came from someone else. And the FBI said mitochondrial DNA tests on the hair indicated it was identical to that taken from McGinn.

Richard Alley, McGinn’s attorney, said after the test results were revealed that his client continues to maintain his innocence. As for his own beliefs, Alley said: “I think DNA testing is now so advanced . . . I think [the testing] removes any question to a moral certainty as to his guilt.”

Defense attorney Barry Scheck--whose group, the Innocence Project, fought on behalf of Criner and offered to pay for new DNA testing for McGinn before a judge ordered the state to pick up the tab--said he hoped Tuesday’s events would help persuade Bush to support the Innocence Protection Act, which would give inmates the right to DNA tests in cases where evidence might show actual innocence.

“I think it’s peculiarly appropriate that we have a pardon on the grounds of actual innocence on the same day that McGinn’s DNA confirms his guilt,” Scheck said. “What hopefully it’s going to do is win Gov. Bush over to the side of supporting the Innocence Protection Act in Congress . . . and doing post-mortems on cases like Criner’s, to see what went wrong and prevent it from happening again.”

Times staff writer Dana Calvo contributed to this story.