Rising Doubts on Capital Trials

Texas Gov. George W. Bush’s decision Thursday to stay an execution so genetic evidence can be evaluated is a welcome recognition from a tough supporter of the death penalty that DNA tests can be essential to giving defendants, to use Bush’s words, their “full day in court.”

The presidential candidate acknowledged that “DNA can be part of the puzzle, to the extent that it adds certainty.” Previously Bush, during whose tenure 131 executions have occurred, stated flatly, “There’s no doubt in my mind that each person who has been executed in my state was guilty of their crime.”

The stay comes in the case of Ricky Nolen McGinn, 43, who was to be executed Thursday. McGinn’s defense was botched when his appellate lawyer failed to point out that an earlier form of DNA testing that seemingly linked the defendant to the rape and murder of a child was actually inconclusive.

Bush’s ability to correct flawed applications of the death penalty at this stage of the legal process is limited. Under Texas law, he has the ability to independently grant a one-time temporary reprieve to a condemned prisoner. That’s why the Texas Republican should join Illinois’ Republican governor, George Ryan, in supporting fundamental improvements in how states go about trying capital cases. Ryan has imposed a moratorium on executions in Illinois--something Bush cannot do alone--until an inquiry is completed into his state’s capital proceedings. Thirteen men have been exonerated after being given death sentences in Illinois trials held since 1977.

Most of the 38 states with the death penalty, including Texas and California, lack statewide public defender systems to provide a fully adequate defense to people who cannot afford one. Another problem is that currently only New York and Illinois guarantee condemned prisoners the right to have modern DNA tests done.

Bush’s reprieve in the McGinn case, no matter what the testing proves, is a welcome softening of his hard line. It is one more recognition that there are indeed problems with the application of the death penalty in this nation.