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On the evening of Nov. 15, 1996, the state of Georgia electrocuted Ellis Wayne Felker for the rape and murder of 19-year-old Evelyn Joy Ludlam. As the volts surged through him, observers say, Felker’s body stiffened, and his fists clenched, just as those of scores of condemned men before him. He had steadfastly professed his innocence until the end, telling his executioners they were killing an innocent man. On Aug. 1, representatives of three newspapers and one TV network obtained an order seeking to prove that claim. The same judge who signed Felker’s death warrant granted them access to hairs and fingernail scrapings taken from him and Ludlam, samples which have been sent to a laboratory for DNA testing. The results, expected in several weeks, could indicate Felker’s guilt, as similar tests did for Texas death row inmate Ricky N. McGinn. His June 1 reprieve by Gov. George W. Bush focused attention on the Republican presidential nominee’s earlier declaration that he had never presided over the execution of an innocent person. But results tending to exonerate Felker, abolitionists say, could put a face to the once-unthinkable: wrongful execution. A posthumous vindication would eliminate the argument of death penalty proponents that no proven execution of an innocent has taken place. But two of Felker’s former lawyers agree with a Georgia prosecutor that this will probably not be that case. They point to the questionable quality of the 19-year-old evidence; Felker’s prior conviction for sexual assault; and the fact that DNA testing in this case cannot be 100 percent determinative of innocence. “It’s not the ideal case, I think, because there are possible alternative explanations to a hair of Wayne Felker’s being on a victim’s body because he and she were together a few days before she died,” says Stephen C. Bayliss, a former Georgia Resource Center attorney who represented Felker in his final petition for habeas corpus. “DNA exonerations are in rape cases. This is a murder case,” adds Kelly R. Burke, current district attorney for Houston County, Ga., where Felker was convicted. Of the 87 people who have been freed from death row, eight were sprung due to DNA. GUILT BY ASSOCIATION In November 1981, Evelyn Joy Ludlam was a Macon Junior College student who wanted to quit her job as a waitress at a Holiday Inn in Warner Robins, 15 miles south of Macon. Felker, whom his original trial lawyer described as a man who hung out with a crowd prone to wild sex parties, listened to Ludlam express a desire for a job that didn’t conflict with her religious beliefs and offered her one at his leather shop. Felker, 34 at the time, later admitted meeting Ludlam about the job. He always denied killing her. Prosecutors alleged that Ludlam was last seen alive the next day with Felker. His lawyers counter that the prosecution suppressed evidence that she had been seen with others and that Felker was under police surveillance when she was killed. Two weeks later, Ludlam was found in a creek, beaten, raped and strangled. Connected by hair fibers found on her clothing and by their association during her last days, Felker was convicted and sentenced to death. “The state’s theory was entirely circumstantial — their entire case was based on the premise that Felker was the last person seen alive with the victim,” says attorney Phillip S. Brown, now a Bibb County, Ga., Superior Court judge, who was hired to represent Felker by his mother. “There was a great deal of sympathy for what happened to the girl,” and bias against his client’s lifestyle also played a large role in his conviction, he says. “If this had been any middle-class American living a middle-class lifestyle,” he would not have been convicted. He adds that it didn’t help that Felker had been convicted of aggravated sodomy just a few years before. Felker sat on death row for 13 years, losing his direct appeals and his state and first federal habeas appeals. A May 2, 1996, appeal to the U.S. Supreme Court of the denial of his second federal habeas petition was filed just eight days after President Clinton signed the Antiterrorism and Effective Death Penalty Act. The appeal led to the high court’s affirmation of the law’s habeas restrictions. In a unanimous June 28, 1996, ruling in Felker v. Turpin, the Court upheld a “gatekeeper” provision requiring petitioners to seek the permission of a U.S. circuit court of appeals before filing a second petition with the district court. The opinion reaffirmed the high court’s power to entertain direct habeas corpus petitions because the new law restricted only those filed in district courts. That fall, after a failed, last-minute appeal based on boxes of what Burke says was “non-exculpatory,” previously undisclosed evidence, including the samples at issue, Felker was put to death. “These lawyers came in in the last weeks and said a DNA test would be more conclusive,” says Jim Walls, director of special projects for the Atlanta Journal-Constitution, explaining why his paper chose the Felker case after being told by the publisher to find a quick project on the death penalty. Joined by the Macon Telegraph, the Boston Globe and CBS News, he sought access to the evidence under Georgia’s open-records laws. On Aug. 1, Houston County Superior Court Judge L.A. McConnell Jr. granted access to the evidence. The materials were sent the next day to Forensic Science Associates in Richmond, Calif. DNA expert Barry C. Scheck applauded the media efforts, saying that it is “their job” to do this because organizations like his, the New York-based Innocence Project, can afford DNA testing only for living death row inmates. “It’s pointless. They are not going to find anything under the fingernails — she was in the water for a week,” says DA Burke. He added that the hair is meaningless because Felker admitted that he had met with Ludlam. Some death penalty proponents have admitted that they are willing to accept the rare execution of an innocent person as the price of maintaining capital punishment. But others have not, and Scheck says that a posthumous exoneration might increase public opposition to the death penalty. “There’s always a much greater emotional significance conveyed by a single, concrete case,” he says. Michael D. Rushford, president of the pro-death penalty Criminal Justice Legal Foundation, counters that because “we couldn’t find any evidence of an innocent person being executed” since the death penalty was reinstituted in 1976, “I don’t think it’s a systemic problem.”

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