The New York Times

Friday, June 2, 2000

THE TEXAS GOVERNOR

Bush Delays an Execution For the 1st Time in 5 Years

By FRANK BRUNI with RICHARD A. OPPEL Jr.

SACRAMENTO, June 1 -- In a step he had never taken over the course of 131 executions in five years, Gov. George W. Bush agreed tonight to a 30-day reprieve for a death-row inmate in Texas, citing concerns that adequate tests on DNA evidence in the case had not been performed.

Mr. Bush made his decision, which he had telegraphed well in advance, after both the United States Court of Appeals for the Fifth Circuit, in New Orleans, and the United States Supreme Court late today rejected final-hour pleas by lawyers for the inmate, Ricky Nolen McGinn, who had been scheduled for execution by lethal injection at 6 p.m., Central Daylight Time.

Mr. McGinn was convicted of raping and killing his 12-year-old stepdaughter in 1993, but Mr. Bush acknowledged over recent days that new DNA tests might be able to determine more definitively Mr. McGinn's guilt on the rape charge.

It was the rape, layered on top of the murder, that qualified Mr. McGinn for a death sentence.

Mr. Bush, who had just arrived at the California Capitol here for a conference of governors, announced the stay only about 15 minutes before the originally scheduled time for the execution. He noted that the actual reprieve would be granted by State Senator Rodney Ellis of Texas, a Houston Democrat who was acting as governor while Mr. Bush and the lieutenant governor were both out of the state.

"I have recommended and Senator Ellis has accepted my recommendation to grant a 30-day reprieve in the case of Mr. McGinn," Mr. Bush told reporters in a corridor of the Capitol.

"Any time DNA evidence can be used in its context and be relevant as to the guilt or innocence of a person on death row, we need to use it," Mr. Bush continued. "We're doing so in the case of Texas. I expect for the courts and all relevant parties to act expeditiously to review the evidence and to finally determine his innocence or guilt as to the charge of rape in the case of Ricky McGinn."

Because Mr. Bush is now the presumptive Republican nominee for president, his actions as governor are under more intense scrutiny -- none more so than his vigorous enforcement of the death penalty. Texas leads the nation in executions.

Although his probable Democratic opponent, Vice President Al Gore, also supports capital punishment, some of Mr. Gore's allies would like to use the issue to cast doubt on Mr. Bush's efforts to portray himself as a "compassionate conservative."

In addition, Mr. Bush's unusual action in the case of Mr. McGinn underscored the way in which modern DNA testing and technology have begun to affect the debate over capital punishment by casting doubt on convictions once considered just.

In recent months, even some staunch conservatives have begun to acknowledge qualms about capital punishment, in light of a number of death sentences that have been overturned recently after DNA testing exonerated the inmates.

Mr. Bush's aides said that his action today was not even remotely influenced by politics and that he had made many tough and unpopular decisions about the death penalty in the past.

As governor, Mr. Bush's only independent authority is to grant a 30-day reprieve of an execution. He cannot pardon someone or commute a death sentence without the prior recommendation of the Texas Board of Pardons and Paroles. Under those circumstances, he has commuted only one death sentence in his five years in office, sparing the life of Henry Lee Lucas, a confessed serial killer.

In that case, as in this one, the argument against the death penalty was not a sentimental but an evidentiary one, and it cast seeds of doubt about the defendants' guilt in regard to the particular conviction for which he received his sentence.

But this was the first time that Mr. Bush agreed to a reprieve for a death-row inmate, and he did it against the wishes of the pardons board, which had voted, 11 to 7, not to stay Mr. McGinn's execution. For the moment, that action merely delays Mr. McGinn's execution, although his lawyers hope that they can now perform new DNA tests that will shed new doubt on his guilt.

What Mr. Bush did today, and the way in which he presaged it with a series of remarks on Wednesday, suggested that he was at least somewhat sensitive to his image as a fervent advocate of capital punishment and pleased to happen upon a case that allowed him to temper it.

In the past, Mr. Bush had almost always waited for courts to complete their reviews of death-row inmates' appeals before he signaled his own intentions or thinking on the matter.

But Mr. Bush broke from that pattern this time around, telling reporters on Wednesday that he was likely to grant Mr. McGinn a 30-day reprieve. At the time, the Fifth Circuit had yet to rule on the appeal, and Mr. McGinn's lawyers had not turned to the Supreme Court.

Several Republican political strategists around the country said they doubted that Mr. Bush was simply trying to soften his image by showing a capacity for clemency.

"I don't think that this is political," said Mike Murphy, who was one of the principal strategists for the presidential campaign of Senator John McCain of Arizona. But Mr. Murphy added, "The truth is that the explosion in DNA technology has really changed the death penalty dynamic, and perhaps he's taking that reality into account a little bit."

Karen P. Hughes, a spokesman for Mr. Bush, said this afternoon that Mr.

McGinn's case was the first one Mr. Bush had faced as governor in which the possibility of further DNA testing was so central to the question of innocence or guilt.

"The DNA testing at the trial level was inconclusive and there's an opportunity to get more information now from that test, so he feels it's the right thing to do," Ms. Hughes said."

The fate of Mr. McGinn from this point on remains unclear because his lawyers are in waters largely uncharted in Texas. They must obtain the evidence they want tested, including clothing from the victim that contained a semen stain and a pubic hair found on the victim's body, and then analyze the DNA.

But they said today that they were not certain whether they have just 30 days to complete this or whether the case now returns to a state district judge to set a new execution date, which would give the defense team at least 60 days.

No matter how the tests turn out, however, prosecutors say they expect the murder conviction to stand because of other evidence that tied Mr. McGinn to the girl's death.

In Texas, murder is punishable by death only if the killing occurred under certain specified circumstances, including the murder of a police officer or firefighter in the line of duty; murdering for money or paying someone else to do so, and murdering a child under 6 years of age.

In this case, the death penalty threshold was achieved when the jury found Mr. McGinn guilty of also raping his stepdaughter.