The New York Times

Thursday, June 01, 2000

Bush Expects to Grant His First Reprieve to Killer-Rapist on Texas' Death Row

By RICHARD A. OPPEL Jr. with FRANK BRUNI

DALLAS, May 31 -- Gov. George W. Bush of Texas said today that he was "more than likely" to grant a temporary reprieve for a man scheduled to be executed on Thursday so that DNA evidence in the case could be tested.

It would be the first such stay Mr. Bush has issued as governor.

The case of Ricky Nolen McGinn, 43, who was convicted of raping and murdering his 12-year-old stepdaughter in 1993, has slowly and quietly been working its way through the Texas legal system. But with Mr. Bush, a vigorous supporter of the death penalty, now the presumptive Republican presidential nominee, the case has begun to take on political significance.

Mr. Bush made his statements about the case a day after the Texas Court of Criminal Appeals, the state's highest criminal court, refused to accept the recommendation of a lower court that the execution be delayed so DNA tests could be conducted. The appeals court did not give details for its refusal.

But Mr. Bush told reporters covering his campaign that he was inclined to grant a 30-day reprieve so that Mr. McGinn could "have his full day in court."

"To the extent that DNA can help in innocence or guilt, particularly in death penalty cases, but in all cases, I think that's very valid, very important," Mr. Bush said at a news conference in Scottsdale, Ariz.

Asked why he was telegraphing his intentions before making a final decision, he said: "I believe this is a case where it's important for me to send a signal about what I may do because it's a case where we're dealing with a man's innocence or guilt." As Mr. Bush was talking about the case, the state's Board of Pardons and Paroles, whose members he appoints, voted 11 to 7 against recommending a reprieve. But the governor is not bound by that recommendation.

At Mr. McGinn's trial five years ago, DNA tests of hair and semen samples taken from the body and clothing of the victim, Stephanie Rae Flanary, were inconclusive. But lawyers for Mr. McGinn, who says he is innocent, say advances in DNA testing could now yield conclusive results if the evidence were retested.

Since taking office, Mr. Bush has overseen 131 executions, including one today -- more than any other governor in the nation -- and has made speeding the pace of executions a priority. He has backed legislation in Texas curtailing what he has described as efforts by convicted murderers "to endlessly delay justice by repeatedly filing court appeals." He maintains that every one of the prisoners executed during his tenure were guilty and had appropriate access to the courts.

But speaking in a teleconference to a gathering of Roman Catholic journalists in Baltimore last week, Mr. Bush said he supported DNA testing to "erase any doubts" about a condemned prisoner's guilt. Aides to Mr. Bush also note that the governor has pardoned two convicted sex offenders, including an East Texas man pardoned today, after DNA tests proved their innocence.

Under Texas law, the governor only has the independent ability to grant a one-time 30-day reprieve to a condemned prisoner; he can commute a death sentence, as Mr. Bush has done once, but only if the Texas Board of Pardons and Paroles recommends that action.

Since Mr. Bush is traveling out of the state, and Lt. Gov. Rick Perry is out of the country, the decision on whether to act in Mr. McGinn's case technically falls to the State Senate's president pro tem, Rodney Ellis, a liberal Democrat from Houston who in the past has clashed with Mr. Bush over criminal justice legislation. A spokesman for Mr. Ellis said today that he had not yet decided what to do in Mr. McGinn's case, but virtually no one expects him to allow the execution to take place under the circumstances.

Mr. Bush told reporters this afternoon that he had contacted Mr. Ellis's office to say that he was leaning toward a reprieve. "I'll make a decision tomorrow morning," Mr. Bush said. "I have the authority to recommend to the chain of command" what to do, he said.

Mr. McGinn's lawyers have filed motions with the United States Fifth Circuit Court of Appeals, in New Orleans, and Mr. Bush said he would await that court's decision before acting. If the courts do not halt the execution, "I'm more than likely to grant the 30-day reprieve," he said, adding that his staff is reviewing how to ensure that the DNA evidence gets retested. "We're now researching the procedure to make sure the DNA gets evaluated."

Bush aides said today that they did recognize that this case was one of the more attention-getting death penalty cases, but they insisted that such factors have no bearing on how Mr. Bush acts or on what he says. Yet the case also affords Mr. Bush a chance to speak in a moderate voice on the death penalty without seeming to pander, because Mr. McGinn's case involves some understandable questions of evidence that have drawn national attention.

One aide noted that this case, like that of Henry Lee Lucas, involved a question of evidence, and the aide suggested that Mr. Bush found this sort of factor more relevant and compelling than emotional factors like those involved with the decision not to grant a reprieve to Karla Faye Tucker. In other words, this case, like that of Mr. Lucas, has questions that go directly to the matter of guilt, not of contrition.

Ms. Tucker, a born-again Christian who said she had repented for her crimes and whose case drew pleas from religious leaders, was executed in 1998. Mr. Bush commuted Mr. Lucas's sentence to life in prison in 1998, following a recommendation by the state pardons board, after serious questions were raised about whether Mr. Lucas, a confessed serial killer, actually committed the murder for which he was convicted.

Mr. Bush's embrace of DNA testing for death row inmates comes as some states have been rethinking capital punishment amid concerns about the execution of innocent prisoners and polls that indicate support for the death penalty is at a 20-year low, although most Americans still favor it.

Earlier this year, Gov. George Ryan of Illinois, a Republican, imposed a moratorium on capital punishment in his state after the exoneration of 13 men on death row, and he said executions would not resume until he had a "100 percent guarantee" that no innocent person would face the death penalty again. Across the nation, bills have been introduced in a dozen states to halt executions. And in New Hampshire, state lawmakers in May became the first to vote to abolish the death penalty since the Supreme Court allowed executions to resume in 1976. The New Hampshire governor, Jeanne Shaheen, a Democrat, vetoed the measure.

In addition to its appeal before the federal appeals court, Mr. McGinn's defense team, which includes Barry Scheck, the DNA expert and New York lawyer who helped defend O. J. Simpson, has filed a civil lawsuit in Texas to obtain the hair and semen samples taken from the victim's body so they can be retested.

If DNA tests indicate that the hair and semen did not come from Mr. McGinn, that would "raise doubts about whether he could have committed whole crime," said Mr. Scheck, who added that he has "no idea" about the guilt or innocence of Mr. McGinn. Only New York and Illinois allow condemned prisoners to get new DNA tests of evidence in their cases, and Mr. Scheck said Congress should pass a bill making that standard across the nation.

Lee Haney, who prosecuted Mr. McGinn's murder case in 1995, said that "as far as humanly possible" he was convinced of Mr. McGinn's guilt. If new DNA tests indicated that the hair and semen were not Mr. McGinn's, he said, "It would obviously lead to the conclusion that someone else was involved in the sexual assault in addition to Mr. McGinn, but it would not affect other evidence in case that very clearly ties him to the murder." That includes blood from the victim in Mr. McGinn's car and on his clothes, he said.

Questions have also been raised about the adequacy of some of Mr. McGinn's legal representation. A defense investigator in the case, Tina Church, told The Dallas Morning News that Mr. McGinn's appellate lawyer, Richard Alley, did not know about the inconclusive DNA tests until a few months ago, when she brought them to his attention. "He should have known about the tests," Ms. Church told the newspaper.

Mr. Alley, of Fort Worth, has twice been publicly reprimanded by the State Bar of Texas -- once in 1985, the other time in 1992 -- and there are two private complaints pending against him, state bar officials say. Mr. Alley said neither pending complaint concerned the McGinn case. He said that he would have liked to have brought the motion for DNA retesting more quickly but that it had taken time to obtain the necessary affidavit from a scientific expert.