UPDATE, January 14

North Carolina Governor Mike Easley commuted Charlie Alston’s death sentence on January 10, just hours before his scheduled execution. Easley denies that public pressure influenced his decision, but it’s clear that local, state and national media attention–uniformly critical of Alston’s plight– had backed him into a corner. Alston now faces life without parole, though his attorneys will continue the fight to find the missing DNA evidence that could exonerate him.

Charlie Alston had a very short holiday wish list this season, consisting of a single item: He wanted the criminal justice system to uphold the rights guaranteed him under the law. For someone facing execution on January 11–someone who may well be innocent–that doesn’t seem like much to ask. But barring a last-minute reprieve, it’s apparently more than the system is willing to give.

Alston awaits lethal injection for the 1990 killing of Pamela Perry in Warren County, North Carolina. Last July state legislators passed the Innocence Protection Act, one of fourteen DNA bills signed into law in 2001. The North Carolina version requires that law enforcement agencies preserve biological evidence and give inmates access to DNA testing if it might benefit their defense. In Alston’smcase, the medical examiner took fingernail scrapings from the victim that appeared to have accumulated during a struggle with the perpetrator. Having protested his innocence from the beginning, Alston wants the scrapings tested. This is exactly the kind of case the new law was designed for, says attorney Mark Edwards, his current co-counsel.

But the evidence is gone. Warren County Sheriff Johnny Williams, whose department had custody of the scrapings, says he has no idea what happened to it. Despite requests from Alston’s attorneys, the courts have yet to demand that Williams account for the disappearance. Even if a judge ordered an explanation, state attorneys argue, it wouldn’t matter: The DNA law does not apply to evidence collected before its adoption.

Recently retired Warren County District Attorney David Waters, who tried the case, told the News & Observer of Raleigh that he is absolutely certain of Alston’s guilt. Prosecutors almost always profess their confidence in guilty verdicts–including, no doubt, those ninety-nine death-row convictions in which the condemned were later cleared of wrongdoing, eleven as a result of DNA tests.

Waters’s confidence seems especially misplaced. Alston was a legitimate suspect, a former boyfriend of the victim who six weeks before her death had been convicted of assaulting her in a jealous rage. But the case against him was entirely circumstantial and riddled with the kind of flaws that have become all too familiar in capital cases. The crime scene was contaminated; one witness reported that the lead investigator seemed inebriated. Once police fingered Alston as the culprit, other possible suspects were dismissed or ignored.

In fact, what little forensic evidence existed pointed away from Alston. He was accused (by drug dealers themselves facing criminal charges) of buying crack with quarters he’d stolen from a jar by the victim’s bedside, but the only fingerprints found on the jar belonged to someone else who was never identified. The victim was hammered to death and the crime scene was awash in blood, yet a state trooper who picked Alston up with a friend after their car ran out of gas–about an hour after the killing–reported seeing nothing unusual; tests on his clothes a week after the murder showed no trace of blood, hair or fibers. The case might have dissolved in court with a sharp defense, but Alston’s court-appointed attorneys did little to exploit the state’s weaknesses. And they never asked that the fingernail scrapings be tested, an oversight that the Innocence Protection Act magnifies into a travesty.

In Alston’s case, old laws offer as little protection as the new. Without a reprieve, he will be one of the first to be executed without getting his day in federal court. The reason? His (again court-appointed) postconviction lawyer missed the filing deadline, meaning his case couldn’t be reconsidered or appealed at the federal level. Ten days later the lawyer was committed to a state mental institution for substance abuse and was eventually disbarred. Tough luck, said the Fourth Circuit Court of Appeals.

Just before Christmas, a superior court judge in Warren County rejected Alston’s petition for relief under the DNA law. A last-ditch appeal to the state Supreme Court is unlikely to succeed, so Alston’s fate will likely rest in the hands of Governor Mike Easley.

Whether or not the Governor allows the execution to proceed, the remedy of DNA legislation has been cast in shadow. “It’s all the more reason we need a moratorium on the death penalty,” says Barry Scheck, noted DNA attorney and founder of the Innocence Project, which provides pro bono legal assistance to inmates who are challenging their convictions based on DNA testing of evidence. “This is just another one of those instances where you have all the elements that make for a troubling death penalty case.”