After approving 131 executions as governor of Texas, George W. Bush granted his first reprieve in a capital case Thursday, suspending a Death Row inmate’s execution for 30 days so DNA tests can be conducted.
Bush, the presumptive Republican nominee for president, stayed the execution of Ricky Nolen McGinn, who was convicted and sentenced to death for the rape and ax murder of his 12-year-old stepdaughter. McGinn has maintained his innocence, and his lawyers have waged a campaign to have either the courts or governor’s office order DNA testing to refute or buttress McGinn’s claim.
After the courts refused to act, Bush granted the request Thursday less than a half-hour before McGinn’s scheduled execution.
“Any time DNA evidence used in this context can be relevant as to the guilt or innocence of a person on Death Row we need to use it,” Bush said in Sacramento where he was campaigning.
The governor’s decision squared with recent comments he has made endorsing the use of DNA tests to erase doubts in capital cases, but it departed from his handling of similar requests made by previous Death Row inmates.
Texas law grants Bush the authority to order further investigation in capital cases when there are questions of innocence or fairness, but he has never before exercised that power–even when DNA tests have been requested.
Since the death penalty’s reinstatement in 1976, Texas has executed 218 inmates, more than a third of the total put to death in the U.S. The state’s administration of the death penalty–and the role Bush has played in it–have received increased scrutiny in recent months because of Bush’s presidential campaign.
Most of the state’s executions have taken place during Bush’s 5 years as governor. Bush has consistently said he is confident that no inmate executed under his watch has been innocent.
Beyond Texas, doubts about the administration of the death penalty have taken hold in several states.
Illinois Gov. George Ryan declared a moratorium on executions in January, marking the first time any state has taken that step. Ryan said he will not approve another execution until he is confident that flaws in the state’s system of capital punishment have been fixed.
Following Ryan’s decision, Indiana Gov. Frank O’Bannon ordered a study of the death penalty in his state. The New Hampshire legislature took an even bolder step, voting to abolish capital punishment. New Hampshire Gov. Jeanne Shaheen, however, vetoed the bill last month.
McGinn was convicted of the 1993 rape and murder of his stepdaughter, Stephanie Flanary, based on circumstantial evidence that included forensic analysis of blood and hair. Since McGinn’s trial, though, scientific advances have made it possible for new tests to provide more definitive conclusions about the physical evidence recovered.
Because Bush was campaigning out of state, McGinn’s reprieve was issued by state Sen. Rodney Ellis, a Democrat who has approved three previous executions. As president pro-tem of the Texas Senate, Ellis constitutionally was in charge because Lt. Gov. Rick Perry, a Republican, also was out of the state.
“Throughout this process, I have been in close contact with the governor’s office and we agree that a reprieve is necessary in this case,” Ellis said. “I sincerely believe in the principle of swift and sure punishment, but our paramount concern must always be that justice is done. In my view, it is in the best interests of justice to delay Mr. McGinn’s execution and permit new DNA testing.”
McGinn’s attorney, Richard Alley, said he felt “intense relief” when the reprieve was issued.
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Texas’ system of capital punishment allows the governor to issue a one-time, 30-day reprieve or to grant clemency upon a recommendation of the state’s Board of Pardons and Paroles.
McGinn’s case was the first time Bush has granted a reprieve. Since becoming governor in January 1995, Bush has granted clemency once. In 1998, he commuted the death sentence of Henry Lee Lucas to life in prison, saying he had doubts that Lucas had committed the murder for which he faced execution.
Lucas had become infamous in the 1980s for confessing to some 600 murders, but he later recanted amid evidence that he could not have committed many of the slayings. Lucas was on Death Row for the rape and murder of a woman, never identified, whose body had been found in 1979 in a highway culvert. The only evidence linking Lucas to the slaying was his confession, which he later recanted. Payroll records and other evidence indicated Lucas was in Florida when the woman was killed.
Texas law also provides that the governor may order the Board of Pardons and Paroles to investigate a case for any reason, such as questions of innocence or fairness. But prior to McGinn’s case, Bush had not used that power.
Before Bush launched his presidential campaign on a platform of being a “compassionate conservative,” Jerry Lee Hogue was executed in Texas on March 11, 1998.
His execution came despite pleas for DNA tests from an unlikely source–a law-enforcement officer who had doubts about Hogue’s guilt.
Hogue had been convicted of murdering a woman in her home and then setting the house on fire.
Joseph Stewart, an arson investigator found suspicious similarities between the arson-murder for which Hogue had been condemned and an arson committed two decades later by another man. The other man had been present at the first arson and had implicated Hogue.
Stewart, now a Foard County deputy sheriff, detailed his doubts about Hogue’s case in a sworn affidavit. When that failed to persuade the courts to stay the execution, he called Bush’s office. He also faxed a statement to the governor’s office from a newly discovered witness who said she had heard the other man brag about the earlier arson.
All Stewart wanted, he said, was a 30-day reprieve from Bush to allow DNA testing and a closer examination of the case. But Bush’s office refused.
Rob Owen, a defense lawyer who represented Hogue, expressed frustration Thursday that Bush didn’t grant Hogue a reprieve.
Had Hogue’s case been drawn out in the courts a couple of more years, Owen said, it may have been treated differently. “I would be lying to say I didn’t feel a little bit embittered,” he said. “[Hogue] could’ve been the beneficiary of the governor’s growing recognition of the need for more caution and concern for death penalty cases.”