Bush Says He Might Delay Execution for DNA Tests

Days after saying he favored DNA testing to ensure certainty in some death penalty cases, Texas Gov. George W. Bush said Wednesday he would likely grant his first stay of execution during more than five years as governor.

During campaign stops in New Mexico and Arizona, the presumed Republican presidential nominee said he was “inclined” to grant a 30-day reprieve to convicted murderer and rapist Ricky Nolen McGinn. Lawyers for the condemned man are calling for more up-to-date testing on DNA found at the 1993 crime scene.

“I want the man to have his full day in court,” Bush said. “If there is any doubt, any outstanding evidence that exonerates him from the rape, we ought to look at it.”

McGinn is scheduled to die today for the 1993 rape and killing of his stepdaughter, Stephanie Rae Flanary. A stay would be the latest last-minute twist in this execution. Initially set for April 27, it was postponed when a Fort Worth tornado struck the defense attorney’s office building, flinging paperwork from his case to the winds.

A temporary reprieve would have special resonance right now for Bush, who has repeatedly averred that no innocent person has been executed in Texas during his tenure. The state executes more people than any other in the nation.

Unlike other governors, the governor of Texas may grant only one-time, 30-day stays of execution to condemned prisoners. He can commute sentences entirely with the approval of the state Pardons and Paroles Board.

The parole board voted 18-0 on Wednesday to deny McGinn’s request for commutation.

While Bush has been governor, 128 men and two women have been executed in Texas. Though Bush has never granted a stay, he did reduce self-proclaimed serial killer Henry Lee Lucas’ death sentence to life, saying he believed the evidence was insufficient.

A state district court last week ruled that McGinn was entitled to DNA retesting using more modern technology, but the state Court of Criminal Appeals turned down the request Tuesday. A federal appeal is still pending. Bush has said he would wait until McGinn has exhausted all of his appeals before acting.

In an unrelated case Wednesday, Bush pardoned a 45-year-old man, A.B. Butler Jr., who was convicted of rape and kidnapping and spent 10 years trying to have DNA testing done in his case. Butler was freed from prison in January after the tests cleared him.

It was Bush’s 15th pardon as governor and third based on DNA evidence.

The death penalty has played a powerful symbolic role in recent presidential campaigns. In 1988, Bush’s father, then-Vice President George Bush, repeatedly invoked Michael S. Dukakis’ opposition to capital punishment as evidence the Democratic nominee was a liberal extremist out of touch with mainstream values.

Four years later, then-Arkansas Gov. Bill Clinton used his support for the death penalty to distance himself from the Democratic Party’s soft-on-crime image. Clinton even left the campaign trail at one point to fly home for the execution of a convicted cop killer, Rickey Ray Rector.

In the same way, some suggested Wednesday that Bush’s talk of a possible reprieve was politically inspired, reflecting recent efforts to project a more moderate image. “It would be very dicey for him to come across as being rigid on the death penalty,” said Sherry Bebitch Jeffe, who teaches political science at Claremont Graduate University. “It would take away from the image he’s tried to carefully craft, that of a compassionate conservative. If you are a compassionate conservative, you have to show compassion.”

Several anti-death penalty activists said the they thought a stay would be laudable, but doubted it signaled any sea change in Bush’s attitude.

“There seems to be a torrent of mercy now that there’s a political campaign going on,” said Jim Harrington, director of the Texas Civil Rights Project in Austin. “I think his advisors look at it in the pure political calculus. He’s been taking a drubbing on this issue, particularly in his outlandish position that the Texas system is about perfect.”

Maurie Levin, one of McGinn’s attorneys, called the possible action “certainly a step toward bringing Texas closer in line with the rest of the country.” But, she added, that step would not be enough, because there is no guaranteed legal access for defendants to obtain updated DNA testing after conviction.

While conceding that there was incriminating evidence against McGinn, including DNA evidence, the condemned man’s attorneys argue that some evidence in his 1995 trial went untested, because of shortfalls in the technology available at that time.

Since then, Barry Scheck, the former O.J. Simpson attorney who specializes in DNA issues, offered to pay for the new DNA testing in McGinn’s case.

“Basic decency and common sense tell you, you do not execute people if there’s a DNA test that can show you’re innocent or guilty,” Scheck said Wednesday on NBC’s “Today” show.

Brown County Dist. Atty. Lee Haney, however, accused the defense team of stalling.

“Oddly enough, since DNA seems to be a big deal at this point, it was because of DNA that the trial lasted a good while,” he said. “We had experts from three DNA labs fly in to testify, and it stretched out the trial a little.”

At trial, the jury took only 40 minutes to condemn McGinn after hearing testimony from three sexual assault victims, including one who said she was attacked by him when she was a preschooler.

National attention on the death penalty has also increased since Illinois Gov. George Ryan, a fellow Republican, imposed a moratorium on executions in January and the New Hampshire Legislature voted last week to abolish that state’s death penalty--a step vetoed by the governor.

Bush was asked why he talking about his decision-making in this particular case.

“DNA can be a part of the puzzle, to the extent that it adds certainty,” he said. “I believe this is a case where it’s important for me to send a signal of what I may do.”

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Cart reported from Phoenix, Kolker from Houston. Times political writer Mark Z. Barabak contributed to this story.

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