EXPERTS QUESTION VERDICT,
BUT THE STATE IS UNMOVED
By ADAM LIPTAK
MONTGOMERY, Ala., Feb. 18 - Four bullets were the only evidence against Anthony Ray Hinton in the two murders that put him on Alabama's death row 17 years ago. No one saw him commit the crimes, and nothing else links him to them.
He was, however, identified in a third shooting, one in which the victim did not die and for which Mr. Hinton was never prosecuted. The bullets in that shooting, of a restaurant's night manager in Bessemer, Ala., were matched to his mother's gun and to the bullets found at the scenes of two similar crimes nearby, at restaurants in Birmingham and Woodlawn, which ended in murders.
Last year, Mr. Hinton's lawyers asked a court to reconsider his conviction, based on the findings of three firearms experts who say the bullets from the three shootings cannot be matched to one another or to the gun. The state's lawyers did not attack their conclusions. They attacked the idea that such a hearing should be allowed at all.
The case is one of many posing the question of what a convicted defendant must show, once he has exhausted his appeals, to get a new trial on what he says is possibly conclusive evidence of his innocence.
"If the State of Alabama has to spend even one additional day in Birmingham, Alabama, defending the state," prosecutors wrote in emergency appellate papers seeking to stop the hearing, "the state will be unduly injured in the form of additional per diem expenses, transportation expenses and loss of two assistant attorney generals for a complete work day."
Mr. Hinton, speaking by telephone from Holman Prison in Atmore, Ala., about 100 miles south of here, suggested a different approach.
"Punish the guilty," Mr. Hinton said. "Let the innocent go free."
The appeals court allowed the hearing to go forward, and Judge James Garrett heard from the experts in June. He has not yet ruled on whether Mr. Hinton should receive a new trial.
"If the Alabama Department of Forensic Sciences opened up every case where somebody says, `Oh, you made a goof, I'm really innocent,' " James Houts of the Alabama attorney general's office said at the hearing in June, "then we would spend the rest of our lives trying to retest evidence that's already been tested."
There are reasons beyond the firearms evidence to doubt Mr. Hinton's guilt. He was at work, several people testified, when the third shooting happened. The car he was said to have driven on the night of the third shooting had been repossessed months before. The restaurant robberies continued after his arrest.
The state attorney general, Bill Pryor, said in a statement that he was not convinced by the new evidence. "The experts did not prove Mr. Hinton's innocence," Mr. Pryor said, "and the state does not doubt his guilt."
He added that Mr. Hinton had had the opportunity to submit similar evidence at his trial.
"Hinton's new experts," Mr. Pryor said, "have not offered a conclusion as supportive of the defendant" as that offered by Andrew H. Payne Jr., a civil engineer who testified in Mr. Hinton's behalf at the trial.
Mr. Payne, who has since died, was legally blind and could not operate the crucial piece of machinery, a comparison microscope. He was paid $500. He said the weapon could not have produced any of the bullets.
Mr. Hinton's new experts, who have worked for the military, the F.B.I. and the Dallas police, make a more limited claim. They say only that the gun could not have fired the bullets in the third shooting, the only one in which he was identified. The other bullets, they say, cannot be matched to one another, though it is theoretically possible that they were all fired from the same gun.
The trial prosecutor, Steve Mahon, called Mr. Payne a charlatan. "This man had no idea, he didn't have a clue, about what he was doing," he said in his closing argument. "It is startling and disturbing, alarming and almost sickening."
Jurors laughed at Mr. Payne as he stumbled through his testimony, Mr. Hinton's lawyers said.
"I forgot about myself for a moment," Mr. Hinton, who is now 47, recalled. "I started feeling sorry for him."
Lawden Yates, one of the state's experts at the trial, said the effects of time on the bullets and the weapon's alignment could explain the different conclusions.
"I stand by my findings," he said. "Those bullets were fired from that gun."
Source: NY Times