Report

05/31/2000

By: Mark Wrolstad / The Dallas Morning News

A Texas death-row inmate seeking new DNA tests that he contends would exonerate him was turned down by the state's highest criminal court Tuesday, two days before his scheduled execution.

The Texas State Court of Criminal Appeals threw out Ricky McGinn's request for a new round of genetic-evidence testing, even though a state district court judge recommended last week that the convicted murderer's execution be postponed while the retesting is conducted.

"I was surprised, given the strength of the district court's recommendation that testing should be considered, that the court would deny it so summarily," said Maurie Levin, an attorney with the nonprofit Texas Defender Service in Austin, which represents death-row inmates.

In denying the request, the appeals court issued a standard one-paragraph ruling, which Ms. Levin called "boilerplate."

Mr. McGinn's attorneys had successfully argued to state district Judge Stephen Ellis of Brownwood that two key pieces of evidence - hair and semen from the perpetrator - should be retested using sophisticated DNA technology that was tantamount to new evidence in the case.

But the appeals court rejected the argument without stating its reasons.

Brown County District Attorney Lee Haney, who opposed the retesting, couldn't be reached for comment Tuesday.

Mr. McGinn, 43, was convicted in the 1993 rape and ax murder of his 12-year-old stepdaughter, Stephanie Flanary. He is scheduled to be executed Thursday at the state prison in Huntsville.

Noted criminal attorney Barry Scheck, who joined the McGinn defense team recently, said that the defense may file a lawsuit Wednesday in an effort to obtain the genetic evidence from the Texas Department of Public Safety and have it tested.

Mr. Scheck, co-director of the New York-based Innocence Project, which works to free the wrongfully convicted, said he has "some considerable optimism" that Gov. George W. Bush will grant Mr. McGinn a stay of execution so that the retesting can be done.

"I can't believe a person running for president would consent to the execution of somebody when a DNA test could prove that the conviction was wrong," said Mr. Scheck, who emphasized that he doesn't know whether the inmate is guilty or not.

Mr. McGinn's 11th-hour appeals, first detailed last month in The Dallas Morning News, have put him into the national debate over DNA testing and whether the justice system should guarantee retesting in older cases.

Investigators identified blood found in his car and on an ax discovered in his truck as the victim's.

But DNA tests on a pubic hair recovered from the victim's genitals and on a semen stain on the victim's shorts were incomplete.

A forensic scientist categorized the hair test as inconclusive, and he could not recover DNA from the semen stain. More sophisticated tests hold the promise of definitively linking the hair and semen evidence to Mr. McGinn or exonerating him.

An authority on DNA testing told The News that the earlier tests must have been botched.

The case raised another issue: The ax wasn't found for four days - the day after the girl's body was found - even though Brown County sheriff's deputies had looked in the truck several times.

Last month, Mr. McGinn's scheduled execution was delayed five weeks after his attorney's Fort Worth office was damaged by a March tornado.

"New testing with the advancements in DNA may not change anything," Judge Ellis said in his ruling last week. "But then again, there is at least a chance that the defendant might be exonerated.

"... The need for finality in this case, although very important, is not as important as the need to ensure that justice is done."

Mr. Haney, the district attorney, said last week, "What I'm concerned with is not public policy and 'Should we or shouldn't we?' ... What I'm concerned with is the law, and he has been proven guilty beyond a reasonable doubt."

The prosecutor said that even if new testing methods pointed to someone other than Mr. McGinn, the results "wouldn't matter."