Judge sends Arthur case to high court

BIRMINGHAM - A Jefferson County Circuit Judge on Monday sent death row inmate Tommy Arthur's capital murder case back to the Alabama Supreme Court after reviewing results of DNA testing on evidence taken from the crime scene.

DNA test results disproved a claim made by another death row inmate, Bobby Ray Gilbert, who said it was he, not Arthur, who killed Muscle Shoals resident Troy Wicker in 1982. DNA testing was not available at that time.

Judge Teresa T. Pulliam made her ruling after hearing three hours of testimony that proved Gilbert to be a liar, she bluntly stated.

Arthur, 66, has been convicted of capital murder three times and was scheduled to be executed in July 2008. His execution was placed on hold after Gilbert came forward and claimed he killed Wicker and was having an affair with Wicker's wife, Judy.

The judge ordered the testing to lend credibility to Gilbert's claims. Monday's testimony involved the results of DNA testing on several items found at the crime scene, including a wig the killer supposedly wore and several pieces of clothing belonging to Judy Wicker.

According to the testimony of Angelo Della Manna, chief of forensic biology and DNA for the Alabama Department of Forensic Sciences, there was an insufficient amount of DNA found on the wig to yield any results. The DNA evidence would have been mostly dandruff or dried skin from the scalp of whoever wore the wig.

Defense attorney Marc De Leeuw had hoped the testing would prove Gilbert's claims and exonerate Arthur, who continues to maintain his innocence.

Della Manna testified that DNA testing of the clothing - a blouse, blue jeans and panties - revealed the presence of DNA belonging to Troy and Judy Wicker.

Pulliam said those results proved that Gilbert lied when he claimed he had sex with Judy Wicker the day her husband was killed.

"Science has absolutely worked in this case," Pulliam said. "Science has made a liar out of Mr. Gilbert and that is exactly what he is. His affidavit and testimony are contradictory to the bulk of evidence presented at (Arthur's) trial."

De Leeuw, who was serving as Arthur's defense counsel in place of his lead attorney, Suhana Han, argued that the state forensics lab could have conducted other types of DNA testing that could have provided results beneficial to his client.

De Leeuw said the defense would review the judge's decision and consider filing an appeal. It is not clear if the defense will file an appeal with the state court or with the Alabama Supreme Court.

Assistant State Attorney General Clay Crenshaw, chief of capital litigation in Alabama, said he will ask the Supreme Court to set a new execution date for Arthur.

When Gilbert made his claim, the Supreme Court remanded the case back to the trial court because it cannot rule on the credibility of witnesses, Crenshaw said. Jefferson County was the last trial court to hear Arthur's case.

Gilbert, an inmate serving a life sentence for murder in St. Clair Correctional Facility, came forward three days before Arthur was scheduled to be executed and claimed he killed Troy Wicker.

His claim led to a two-day evidentiary hearing in April in which Pulliam ordered that DNA testing be conducted on evidence found at the crime scene. Those results were presented during Monday's hearing.

Keith Inman, an expert witness employed by Forensic Analytical Sciences, testified that there was sufficient material collected to conduct DNA testing.

Inman said, "You can always run a test," but added that you might not get results.

"But it's worth a try," he said.

Pulliam further stated that Arthur "perpetrated a fraud on the court" by providing Gilbert with information that enabled Gilbert to claim he was the murderer.

Russ Corey can be reached at 740-5738 or russ.corey@TimesDaily.com.