The Death Penalty on Trial: Special Report: DNA and Other Evidence Freed 87 People from Death Row; Now Ricky McGinn Is Roiling Campaign 2000. Why America's Rethinking Capital Punishment

Newsweek, June 12, 2000 | Go to article overview

The Death Penalty on Trial: Special Report: DNA and Other Evidence Freed 87 People from Death Row; Now Ricky McGinn Is Roiling Campaign 2000. Why America's Rethinking Capital Punishment


He stood at the threshold of the execution chamber in Huntsville, Texas, 18 minutes from death by lethal injection, when official word finally came that the needle wouldn't be needed that day. The rumors of a 30-day reprieve were true. Ricky McGinn, a 43-year-old mechanic found guilty of raping and killing his 12-year-old stepdaughter, will get his chance to prove his innocence with advanced DNA testing that hadn't been available at the time of his 1994 conviction. The double cheeseburger, french fries and Dr Pepper he requested for dinner last Thursday night won't be his last meal after all.

Another galvanizing moment in the long-running debate over capital punishment: last week Gov. George W. Bush granted his first stay of execution in five years in office not because of deep doubts about McGinn's guilt; it was hard to find anyone outside McGinn's family willing to bet he was truly innocent. The doubts that concerned Bush were the ones spreading across the country about the fairness of a system with life-and-death stakes. "These death-penalty cases stir emotions," Bush told NEWSWEEK in an exclusive interview about the decision. Imagine the emotions that would have been stirred had McGinn been executed, then proved innocent after death by DNA. So, Bush figured, why take the gamble?

"Whether McGinn is guilty or innocent, this case has helped establish that all inmates eligible for DNA testing should get it," says Barry Scheck, the noted DNA legal expert and coauthor of "Actual Innocence." "It's just common sense and decency."

Even as Bush made the decent decision, the McGinn case illustrated why capital punishment in Texas is in the cross hairs this political season. For starters, McGinn's lawyer, like lawyers in too many capital cases, was no Clarence Darrow. Twice reprimanded by the state bar in unrelated cases (and handling five other capital appeals simultaneously), he didn't even begin focusing on the DNA tests that could save his client until this spring. Because Texas provides only $2,500 for investigators and expert witnesses in death-penalty appeals (enough for one day's work, if that), it took an unpaid investigator from out of state, Tina Church, to get the ball rolling.

After NEWSWEEK shone a light on the then obscure case ("A Life or Death Gamble," May 29), Scheck and the A-team of the Texas defense bar joined the appeal with a well-crafted brief to the trial court. When the local judge surprised observers by recommending that the testing be done, it caught Bush's attention. The hard-line higher state court and board of pardons both said no to the DNA tests--with no public explanation. This time, though, the eyes of the nation were on Texas, and Bush stepped in.

But what about the hundreds of other capital cases that unfold far from the glare of a presidential campaign? As science sprints ahead of the law, assembly-line executions are making even supporters of the death penalty increasingly uneasy. McGinn's execution would have been the fifth in two weeks in Texas, the 132d on Bush's watch. Is that pace too fast? We now know that prosecutorial mistakes are not as rare as once assumed; competent counsel not as common. Since the Supreme Court allowed reinstatement of the death penalty in 1976, 87 death-row inmates have been freed from prison. With little money available to dig up new evidence and appeals courts usually unwilling to review claims of innocence (they are more likely to entertain possible procedural trial-court errors), it's impossible to know just how many other prisoners are living the ultimate nightmare.

So for the first time in a generation, the death penalty is in the dock--on the defensive at home and especially abroad for being too arbitrary and too prone to error. The recent news has prompted even many conservative hard-liners to rethink their position. "There seems to be growing awareness that the death penalty is just another government program that doesn't work very well," says Stephen Bright of the Southern Center for Human Rights. …

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