A Test Before Dying

Nathan Peterson, who directed a petition drive aimed at giving South Dakota voters a chance to overturn a new law making most abortions illegal in the state, lays out the petitions, May 30, 2006, in Sioux Falls, S.D. Members of the South Dakota Campaign for Healthy Families say they've collected nearly 38,000 signatures for the referendum.
In a span of 24 hours this week, two conservative state governors called for DNA tests to confirm the guilt of convicted murderers—a sign of the growing acceptance of DNA evidence, CBS News Correspondent Jim Axelrod reports.

Virginia Gov. Jim Gilmore Thursday approved DNA tests to determine whether Earl Washington Jr., currently serving a life sentence, is guilty of the 1982 rape and murder of a 19-year-old woman.

Also Thursday, Texas Gov. George W. Bush granted his first-ever reprieve in a death penalty case after 131 executions during his five years in office. The condemned man, Ricky Nolen McGinn, was scheduled to die by lethal injection Thursday evening.

The governors' actions reflect a trend that's developed over the five months since Illinois Governor George Ryan, a Republican death penalty supporter, declared a moratorium on executions after DNA evidence spared 13 men from his state's death chamber.

Bush's reprieve gives McGinn—who was sentenced to death for the 1993 rape and killing of his 12-year-old stepdaughter—a period of 30 days for DNA tests that could prove him innocent.

"Anytime DNA evidence can be used in its context and be relevant as to the guilt or innocence of a person on death row, I think we need to use it," Bush said.

The DNA tests in question are related to the McGinn's rape conviction, not the murder conviction. A murderer needs to have also committed an offense like rape to get the death penalty in Texas, so McGinn's life would have to be spared if it were shown he did not commit rape.

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In the Virginia case, Washington's death sentence was commuted to life imprisonment in 1994 on the basis of DNA tests, but those tests did not conclusively clear him.

"Since 1994, DNA science and technology have improved to the point that further testing of the samples taken from the victim might produce more conclusive results than were available to (then) Governor (Douglas) Wilder," Gilmore sai.

First used in court 11 years ago, DNA testing has grown ever more sophisticated.

"This is not a question of defense attorneys or prosecutors, Republicans or Democrats, conservatives or liberals," says attorney Barry Scheck, who helps run the Innocence Project, which promotes the use of DNA evidence to confirm guilt or prove innocence. "These are issues of basic justice."

Scheck says 72 people have been exonerated by DNA evidence in North America—66 in the U.S. In 16 of those cases, the real criminal was identified.

"We really are only scratching the surface in terms of the number of innocent people in jail," says Scheck. "DNA testing is showing us that."

Acceptance of DNA testing is growing, but slowly. While Virginia's Gilmore agrees that DNA testing is opening a new frontier in criminal justice, he remains cautious about its use.

"It's possible that a DNA test can show you something in a select case that causes you to reach a better result," the governor said, "but you can’t just assume that somehow we are going to replace the criminal justice system with a test-tube result."

However, the use of DNA testing in high-profile cases isn't merely a matter of science. Politics is also part of the picture.

Bush, the Republican presidential front-runner, has been criticized for allowing executions to continue in his home state while he campaigns as a "compassionate conservative."

Texas is by far the national leader in the number of executions. There were 35 last year and 19 so far this year, including one Wednesday. At least seven executions are scheduled for June.

Only once since he took office has Bush spared a condemned inmate from lethal injection: He commuted Henry Lee Lucas' death sentence to life in 1998 when evidence cast doubt on Lucas' murder conviction.

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The reprieve earned Bush cold compliments from death penalty opponents.

"The 30-day reprieve granted to Ricky McGinn shows that even a state that has executed men and women at a rate of one every two weeks for the past five and a half years can be susceptible to increased scrutiny," said in a statement.

According to the Death Penalty Informatin Center, over 80 people have been released from death row with evidence of their innocence since 1973.