After the execution, a DNA test

Death Penalty Debate

It's a claim that district attorneys, prison wardens, and even some governors routinely make: Not one innocent person has been executed on my watch.

Now, due to a historic court decision, the resolve behind such claims could be shaken. A judge has allowed a group of news organizations to test DNA in the case of a Georgia man executed four years ago.

If conclusive, the results could have profound ramifications beyond the death of one man. They may significantly shift the focus of the death-penalty debate, and could shape the fall elections (especially in light of Texas Gov. George W. Bush's recent statement that no innocent person has been put to death during his tenure).

The Boston Globe, The Atlanta Journal-Constitution, The Macon Telegraph, and CBS News have teamed up to pay for DNA testing in the case of Ellis Wayne Felker, executed by Georgia in 1996 for raping and murdering a teenage girl. Strands of his hair and her fingernail scrapings were sent to a lab in California last week; the results could be in by the end of the month.

"Look, if it ever could be shown that a person was wrongfully executed, that ... would dramatically alter the death penalty debate in this country," says Ben Bradlee Jr., deputy managing editor for projects at The Boston Globe.

News organizations occasionally hire experts to analyze data, such as auditors to study budgets or scientists to look at environmental projects. But this DNA test - which could cost as much as $30,000 - takes investigative reporting to another level, and may indicate that many in the media regard the death penalty as ripe for examination.

"Generally speaking, it's a positive trend," says Roy Peter Clark, a senior scholar at the Poynter Institute in St. Petersburg, Fla. "If [the media's] purpose is somehow wrapped up in a search for truth and meaning, helping people figure out if they want the state taking lives is pretty high on the list of civic responsibilities."

Recent exonerations

Even as many states have streamlined the appeals process in an effort to speed up executions, DNA tests are pointing up the fallibility of capital punishment. In the past decade, DNA testing has exonerated some 70 inmates, eight of whom were on death row.

"To me, that shows the legal appeals process serves a purpose," says Jim Walls, director of projects at The Atlanta Journal-Constitution. "The debate is more than just whether the death penalty is fair or moral. It's whether it is applied fairly. We're trying to shed some light on that."

Unusual as it may sound, the current case isn't the first of its kind. In 1997, after Joseph O'Dell III was put to death for raping and murdering a woman, the Roman Catholic diocese of Richmond asked a Virginia judge for access to the evidence in his case.

Because DNA testing was not widely available when O'Dell was tried in 1986, rudimentary blood tests were used to convict him. The state would not allow DNA testing on the evidence before he was executed, thus the diocese's petition. The State of Virginia vehemently opposed the petition, and in May finally got permission to destroy the evidence.

Other states have been less opposed to reexamining old cases. Some are even taking active steps: Recently, the San Diego County district attorney's office announced it will begin offering free DNA testing for inmates convicted before 1992 - the first effort of its kind in the country.

In June, Texas Governor Bush halted the execution of Ricky McGinn until old evidence could be tested. (Preliminary results found the DNA was either Mr. McGinn's or a maternal relative's, and the execution was reset.)

Regardless of the results, the media's role is important in all this, says Bob Johnson, president of the National District Attorneys Association and county attorney in Anoka, Minn.

"Prosecutors work in a ... public system of justice that has to be open to public view, comment, and criticism," he says. "It is reasonable for the public to continue to review the way we do business in hopes that, through that process, the system will be made stronger and better."

The whole story

But Kelly Burke, district attorney in Houston County, Ga., where Felker was executed, says the media have chosen the wrong case to spotlight. "Society likes to think there is a magic piece of DNA somewhere that is going prove that an innocent man was executed," he says. "That is not going to happen in this case. The right man was executed."

It's important to remember DNA evidence doesn't tell the whole story, Mr. Burke says. Even if Felker's DNA isn't found in the girl's fingernail scrapings, "that is not going to prove that Wayne Felker was not the one who committed the crime."

All the evidence of the case needs to be considered - including Felker's prior conviction on similar charges, his bogus story to police after her disappearance, and pieces of her coat fiber found in his house.

Because the evidence is so old, Burke is worried that the tests will come back inconclusive, "and [critics] are going to say, 'See, you haven't proven that he was guilty.' Well, I don't have to prove it 19 years later. A jury already found beyond a reasonable doubt that Wayne Felker was guilty."

At The Globe, Mr. Bradlee says his biggest concern is also that the tests will come back inconclusive. "That would be disappointing for both sides." But he also says the Felker case is indeed a good test case, filled with holes and circumstantial evidence. "This was not a slam-dunk case. He maintained his innocence to his death."

(c) Copyright 2000. The Christian Science Publishing Society

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