Via the comments section (you guys are great!),

Alabama’s governor claims he doesn’t have the power to order DNA testing for death row inmate who may be innocent, even though the Innocence Project may pay for it:

Riley said he supports post-conviction DNA testing, and will support it again when legislation making it mandatory is expected to be introduced during the upcoming legislative session.

But he said the way the law stands now, the power to order and have the state pay for such tests rests exclusively with the courts.

The governor’s legal adviser, Ken Wallis, said he has advised Riley that no governor of Alabama has the power to order such tests under the Alabama Constitution.

The problem here is that it’s often the case that once an inmate has exhausted his appeals, even incontrovertible proof of his innocence won’t get him a new day in court. My next Fox column in fact looks at a new study of exonerations showing that even after DNA testing has completely cleared some inmates, they have continued to be incarcerated because the courts consider their cases closed. They were released only after a governor stepped in to pardon them or grant them clemency.

So if Riley is correct in his interpretation of Alabama law, there’s something seriously flawed about Alabama law.

Riley’s claim of executive impotence also contrasts rather starkly with the city of Huntsville’s claim that executive privilege allows them to keep secret the results of an internal investigation into the Kenneth Jamar case. One point I overlooked in my last post on Jamar–even if the city is right about “executive privilege” (and my guess is that either the city spokesperson or the reporter is mistaking executive privilege for sovereign immunity), that doesn’t mean it must exercise the privilege. It eoulc still turn over the documents because it’s the right thing to do. Don’t count on that happening of course.

I suppose it’s possible that Alabama law does indeed give government broad powers to keep documents secret after agents of the government wrongly shoot and nearly kill a man, and, at the same time, narrowly restricts government power when it comes to ordering tests to make sure an innocent man isn’t executed.

If that’s the case, I guess the lesson is to stay the hell away from Alabama. With apologies to my friends in Alabama.

This entry was posted on Monday, January 7th, 2008 at 8:25 pm by Radley Balko and is filed under General Criminal Justice, Innocence. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.