Convict's life may hinge on new DNA tests

Convicted child killer Ricky McGinn is asking for a break that might save his life.<br><br>But from where he sits, on Texas' death row, he and his supporters know he's fighting long odds.<br><br>Mr.

Tuesday, April 25th 2000, 12:00 am

By: News On 6

Convicted child killer Ricky McGinn is asking for a break that might save his life.

But from where he sits, on Texas' death row, he and his supporters know he's fighting long odds.

Mr. McGinn, 43, is scheduled to be executed June 1, five years to the week since his conviction. Relying on strong circumstantial evidence, a jury in Brownwood found him guilty of the 1993 rape and ax murder of his 12-year-old stepdaughter, Stephanie Flanary, in Central Texas.

Mr. McGinn wants new DNA testing of evidence in his case, using technology that has improved markedly since some original tests turned out incomplete.

That 11th-hour wish puts him in the expanding national debate over DNA testing and whether the justice system should ensure retesting in older cases - particularly capital ones - where the results don't meet today's advancing standards.

"We're not asking for a lot, just some better tests to make sure there hasn't been a mistake," said Tina Church, a private investigator who has worked on the case for free. "Does the state of Texas want to execute someone when there's a chance he might be innocent?"

Evidence of guilt

To Brown County District Attorney Lee Haney and Ms. Flanary's family, an abundance of evidence proved Mr. McGinn's guilt, and there's no reason he shouldn't be executed promptly.

"None whatsoever," Mr. Haney said. "The jury was satisfied beyond a reasonable doubt."

In two states and in Congress, enough reasonable doubt has been raised about the use of capital punishment to spur drives for more standard DNA analysis.

New York and Illinois have met the prickly DNA questions with new laws making retesting routine when it can bear on guilt, taking the decision out of the hands of prosecutors and trial judges.

Illinois Gov. George Ryan ordered a moratorium on executions in January because of the state's "shameful record," including 13 condemned men proved innocent since 1987. Some exonerations were because of DNA, the individually unique genetic print.

The developments have added momentum to proposed federal legislation that would make DNA testing available in federal and state cases and set competency standards for attorneys representing indigent capital defendants.

Too late?

Because of limits that most states, including Texas, have placed on death-penalty appeals - upheld by the U.S. Supreme Court - there is no provision even for evidence of actual innocence to be considered six months after a conviction.

Texas judges have allowed DNA retesting in a few cases, but appellate courts generally haven't supported an exercise that can reopen a death-penalty case, attorneys said.

"The way the system is set up, it prevents access to DNA evidence that might exonerate the inmate," said Walter Long, an Austin appellate attorney. "There's no statutory mechanism for getting the evidence released so you can try to back up your claim.

"The courts are going to look at such potential claims with skepticism . . . at the state and federal level. There's a locomotive that gets started that's just very, very hard to stop."

Into this mix steps Ricky Nolen McGinn, whose jury needed only 40 minutes to deliver a guilty verdict.

On May 22, 1993, he reported his stepdaughter missing from their rural home after she supposedly went for an evening walk. Brown County sheriff's deputies arrested him the next day when they found a large quantity of blood in the hatchback portion of his car.

Evidence questions

Mr. McGinn - whom investigators consider a suspect in two other bludgeoning killings - told authorities the blood must have come from fish that he and his stepdaughter had caught.

Two days later, Stephanie Flanary's body was found in a culvert, although a witness testified it wasn't there when Mr. McGinn was arrested.

Deputies didn't find a bloody roofer's ax in Mr. McGinn's disabled pickup until four days after the girl disappeared, despite having looked in the truck several times.

A videotape shot by investigators showed a deputy reaching under the driver's seat and picking up the ax with a bare hand. Mr. McGinn's fingerprints were not found on the foot-long tool.

As to why it took deputies so long to find the murder weapon, Mr. Haney said, "Obviously, that's a good question. It certainly should have been found sooner."

Forensic tests identified the blood on the ax and some of the blood in the car as Stephanie's.

Her autopsy revealed contusions to her genitals. DNA tests were inconclusive on a pubic hair that allegedly came from her attacker, and DNA could not be recovered from a semen stain on her clothing.

Testing criticized

But the prosecutor successfully argued that Mr. McGinn, who was acquitted of killing a man in the 1980s, killed Stephanie during a rape, making it a capital crime. The hair's microscopic characteristics were "identical" to Mr. McGinn's, and serological tests matched the semen to him with more than a 90 percent likelihood, Mr. Haney said.

Dr. Edward Blake, a genetic-testing authority, criticized the DNA work.

"Any time a forensic scientist says 'inconclusive,' it's a huge red flag," he said. "You have two pieces of critical evidence here, and the failure of that process is professional malfeasance because evidence in criminal cases is priceless.

"It was probably an extremely bad error in judgment to do anything," he said, since testing destroys some or all of the evidence.

The scientist who conducted the unsuccessful tests died last year.

Continuing advancements in testing have made it possible to recover DNA from much smaller genetic samples, Dr. Blake said. Retesting the semen stain would be especially important because "if the sexual assault didn't happen, the death penalty goes away."

He also lamented that further testing remains unresolved so close to execution dates. "This situation should never exist," he said.

b>Retesting drawback

Retired state District Judge Ernest Cadenhead, who presided over Mr. McGinn's trial, said he accepts the retesting argument to a point.

"If they had some new evidence, fine, the appellate court certainly could do that," he said. "But trying to retest every DNA thing, where are you going to draw the line?"

The problem for retesting advocates is that new tests constitute only potential new evidence.

Ms. Church, the investigator, found the incomplete DNA results last month and told appellate attorney Richard Alley of Fort Worth.

"He's had this case for three years," she said. "He should have known about the tests."

Mr. Alley said it wasn't clear to him from the trial documents that the DNA evidence was an issue. He said he plans to file his DNA-retest appeal this week in federal court.

Verilyn Harbin, Mr. McGinn's sister, attended the trial and said some of his attorneys haven't done enough. Mr. Alley said client dissatisfaction is part of death-penalty cases.

Ms. Harbin drives regularly from her home in Mississippi, picking up their mother near Brownwood for the visits to death row in Livingston.

They said they believe Mr. McGinn's pleas of innocence and recount contradictory fragments of the trial. "I can look in Ricky's eyes, and if he's lying, it shows," said Ms. Harbin, 50.

Family doubts

Family members have discovered what they said could be blood stains on a coat belonging to a man they consider a suspect in the case.

Without speaking specifically about the McGinn case, several death-penalty attorneys said indigent death-row inmates often get poor legal help.

"Often, lawyers are working alone, don't have the legal background and don't have financial support," said Jeff Pokorak of St. Mary's School of Law in San Antonio.

Some inmates are executed without having their cases completely reviewed, attorneys said.

Mr. McGinn already has had one piece of luck from an unlikely source. The tornado that hit Fort Worth on March 28 badly damaged Mr. Alley's downtown office and earned his client a month's reprieve from the original execution date so he can finish final appeals.

Stephanie Flanary's family was disappointed by the stay and hopes further appeals don't delay the execution again.

"I think it's only fair because he took my sister's life," said Denise Flanary, 17.

Attorney Peter Neufeld, co-founder of a New York project that works to free the wrongly convicted, said retesting should be automatic, regardless of circumstances.

Change in law?

"It's a question of common sense that no right-thinking person can ever disagree with," he said. "It's completely unconscionable not to permit that kind of testing."

There has been further DNA testing related to Mr. McGinn. His DNA recently was identified in semen recovered from 1992 murder victim Christy Jo Egger, 19, Mr. Haney said. But because the two once dated, any prosecution would require more evidence, he said.

"If Congress or the Legislature wants to change the law so that we decide this by DNA testing instead of the judicial process, that's up to them," Mr. Haney said of the McGinn case.

"But we have all these laws and safeguards for a defendant that have been scrupulously observed in this case, and I believe enough has been done. More than enough."