OUSTON - Governor George W. Bush, who recently advocated DNA testing to ''erase any doubts'' from some death penalty cases, said yesterday he would probably delay the execution of a convicted killer whose attorneys are fighting for new DNA tests.
The governor, who has never made such a move in his five-plus years in office, told reporters in Albuquerque that he was ''more than likely'' to give Ricky Nolen McGinn a 30-day reprieve. McGinn is scheduled to be executed today for the rape and killing of his stepdaughter.
''I want the man to have his full day in court,'' said Bush, the presumed Republican presidential nominee. ''If there is any doubt, any outstanding evidence that exonerates him from the rape, we ought to look at it.''
The Texas Court of Criminal Appeals on Tuesday denied McGinn's appeal for new DNA testing, but he still has last-ditch motions before the 5th US Circuit Court of Appeals. Bush said he would wait until McGinn has exhausted all of his appeals before acting.
If the courts don't grant McGinn a reprieve, Bush said, ''I'm more than likely to grant the 30-day reprieve.''
Bush never has used his power to grant the one-time reprieve to a condemned inmate. Over that time, 128 men and two women have been executed.
The 30-day reprieve is a Texas governor's only option unless the state parole board recommends that a death sentence be commuted. Two years ago, Bush agreed to reduce self-proclaimed serial killer Henry Lee Lucas's sentence to life in prison when he determined the evidence was too weak, and the parole board agreed.
The possibility of the unusual move by the governor in McGinn's case comes as Texas's position as the state that executes inmates most frequently has become an issue in Bush's run for the White House.
National attention on the death penalty has also increased since Illinois Governor George Ryan, a fellow Republican, imposed a moratorium on executions in January and the New Hampshire Legislature voted last week to abolish that state's death penalty - a step that was vetoed by the governor.
Last week, Bush said he supported the use of DNA testing to scrutinize pending death penalty cases. Bush also reiterated his belief that no innocent person has been executed in Texas during his five-plus years in office.
McGinn is scheduled to be executed for the 1993 rape and killing of his 12-year-old stepdaughter, Stephanie Rae Flanary. The parole board voted 18-0 yesterday to deny his request for commutation and 11-7 against a 30-day reprieve.
McGinn's lawyers had persuaded the trial judge to recommend retesting of hair and semen. State District Judge Steven Ellis referred the request to the appeals court, which rejected it Tuesday on procedural grounds.
While conceding that there was incriminating evidence against McGinn, including DNA evidence, his attorneys said some evidence wasn't tested because of inadequate technology.
Barry Scheck, the former O.J. Simpson attorney who specializes in DNA issues, offered to pay for the tests, which he said would be superior to those done before McGinn's 1995 trial.
