AARON MATÉ: We turn now to the controversial case of an African-American prisoner set to be executed tonight in Mississippi. Willie Jerome Manning was convicted of murdering Jon Steckler and Tiffany Miller, two white college students, in 1992. The execution is going ahead after prosecutors and state courts refused to allow new DNA testing that could prove Manning’s innocence. What makes the case particularly unusual is that the FBI itself has offered to carry out those tests. The FBI came forward after admitting its original analysis of the evidence during Manning’s trial contained errors. The Justice Department sent a letter saying one analyst’s testimony at trial, quote, “exceeded the limits of the science and was, therefore, invalid.” Manning’s attorneys have seized on the FBI’s admission. They say that no physical evidence ties him to the murders and that testing hair samples and other evidence could identify a different killer.

AMY GOODMAN: But in a five-to-four decision last month, Mississippi’s state Supreme Court refused to grant a new DNA test, citing what it called, quote, “conclusive, overwhelming evidence of guilt, unquote. The court’s majority sided with prosecutors’ argument that the DNA testing could not, quote, “preclude his participation in the crimes,” unquote. But on top of the denied DNA tests, Manning’s attorneys say prosecutors relied on two key witnesses whose credibility has since come under question. Concerns have also been raised about alleged racial bias in the selection of the jury that found Manning guilty. One witness was a jailhouse informant who has since recanted.

Manning has long maintained his innocence. His attorneys have made a last-minute appeal to Mississippi Governor Phil Bryant. Barring action by Bryant or a court, Manning will be killed by lethal injection at 6:00 p.m. Eastern time tonight.

To discuss the case, we’re joined here in New York by Vanessa Potkin, senior staff attorney at the Innocence Project. Her group has raised concerns about the evidence used to convict Willie Manning.

What is the latest, Vanessa?

VANESSA POTKIN: In the last 24 hours, actually, the FBI and Department of Justice have reviewed additional evidence in this case—ballistics—and found that the ballistic evidence that was used against Willie Manning also was invalid.

AMY GOODMAN: The FBI found this?

VANESSA POTKIN: The FBI. And so—and basically, the Department of Justice has issued a second letter. So now we have invalid hair testimony, invalid ballistics, lying at the heart of this conviction. And the FBI has offered to do DNA testing in this case. We have right now a motion before the Mississippi Supreme Court, the U.S. Supreme Court. As you mentioned, the governor can step in and order the DNA testing. But there’s also another key player who has some power here, and that’s Attorney General Hood. And he basically is the one who has been opposing DNA testing for all these years, along with the district attorney’s office. And they have the power to say, “We agree to this testing. Halt the execution.” It’s just amazing in a democracy, you know, built on a truth and senses of justice, that we would go forward with killing somebody when we have evidence that can cut to the truth of this case and determine whether or not he really did the crime.

AARON MATÉ: Well, their argument, of course, is that DNA testing wouldn’t make a difference. And in a statement released on Friday, Mississippi Attorney General Jim Hood said, quote, “Any time there is legitimate, exculpatory evidence, capable of DNA testing, the state is prepared to conduct testing. However when the defense waits until the 11th hour to raise such claims, which could not possibly exonerate their client, courts are loathe to be subjected to these types of dilatory defense tactics.” Mississippi Attorney General Jim Hood went on to say, quote, “The Mississippi Supreme Court has held that the evidence is so overwhelming as to Manning’s guilt. Even if technologies were available to determine the source of the hair, to indicate someone other than Manning, it would not negate other evidence that shows his guilt. He is a violent person who committed these heinous murders.” So, if you could address two things here: one, this claim that it wouldn’t make a difference, and then also, this is an 11th hour request?

VANESSA POTKIN: Right. Well, I’ll start with the 11th hour request. That is just wrong. It’s flatly wrong. Willie Manning has been trying to get DNA testing in this case. He tried in the federal court. He was barred procedurally. He then went back to the state court. On paper, there are records in the public record filed as early as 2008 where he is specifically seeking DNA testing and the state, through the district attorney and Hood’s office, are opposing testing. So we’ve had over four years of litigation about the DNA. So this is anything but an 11th hour request. And what would Jim Hood say to the FBI? You know, they’ve come in in the last 48 hours to say, “Let’s do testing, because we’ve had some invalid sciences here.”

AMY GOODMAN: But the point that it doesn’t matter?

VANESSA POTKIN: Well, that’s flatly wrong, as well. We have 306 people across the country who have been proven innocent by DNA. Eighteen of those people walked off death row. And in many of those cases, we had courts denying DNA testing because, the argument was, “Oh, there’s overwhelming evidence.” We’ve had cases—Kirk Bloodsworth, sentenced to death in Maryland, five eyewitnesses said he was the assailant. We’ve had confessions.

AMY GOODMAN: Well, and what happened?

VANESSA POTKIN: And he was proven innocent. And—

AMY GOODMAN: Taken off death row.

VANESSA POTKIN: Taken off death row. He’s today a free man, an advocate for justice, and recently worked in Maryland, where they repealed the death penalty because of the problems.

AMY GOODMAN: Tell us the story of this case. Go back to the beginning, to the murders of these two white students.

VANESSA POTKIN: Sure. Two college students were found dead. The prosecution believed that they were abducted in their car from a parking lot of a fraternity house. It was a young couple. What’s interesting is that there were signs of a struggle, even then. There were some abrasions on the male victim’s arms. The female victim had her clothing partially removed. I mean, this has all the earmarks of a sexual assault. When they did the original investigation, the autopsy, Steven Hayne, who—you know, we’ve had other people. There’s another man, Kennedy Brewer, who was on death row in Mississippi based on Hayne’s faulty testimony, and he was exonerated a few years ago, with the same prosecutor’s office, and Jim Hood was involved. So they know this can happen.

AMY GOODMAN: Who is Hayne?

VANESSA POTKIN: Kennedy Brewer, he was exonerated from death row. He was in Parchman Prison, along with Willie Manning, and he was cleared a few years ago.

AMY GOODMAN: And who is Hayne?

VANESSA POTKIN: Hayne is a pathologist who was responsible for giving testimony that led to Kennedy Brewer’s wrongful conviction. He had been doing most of the autopsies for the state of Mississippi, and he was removed from the designated pathologists list after problems in the Kennedy Brewer case were exposed. He was the pathologist in this case. He said that there was no semen. But you know what? We’ve had a lot of cases at the Innocence Project where there’s all these indications of sexual assault; in the pre-DNA era they didn’t find semen; and we go back, and we find it, and we’re able to exonerate somebody. There are fingernail scrapings. There was a struggle. There’s hair evidence. There’s an abundance of biological evidence that can cut to the truth here.

And as far as this claim that it can’t prove him innocent, you know, in many of our cases, not only does DNA exclude and show, you know, look, there’s male DNA in all these places that doesn’t come from Willie Manning, but we can now run it in a data bank. The government keeps a data bank of 10 million profiles plus of convicted offenders, and it very well may match somebody who was convicted of a similar crime. It’s not speculation. This happens time and time again in our cases.

AARON MATÉ: What about these two witnesses who said that Manning confessed, and also prosecutors’ contention that he was caught selling the victims’ belongings?

VANESSA POTKIN: Neither of those are as dispositive as DNA. Witnesses lie. Incentivized testimony—you know, both of these witnesses got deals. They had criminal charges against them and lankly records themselves. And, you know, the Northwestern School of Law did a study in the past few years on capital cases and found that informant-snitched testimony is the leading cause of wrongful convictions. And so, you know, two witnesses who had an incentive to make a deal and got a big benefit from giving this testimony are just not as reliable as the science of DNA.

In terms of him being in possession, you know, subsequently of items from the victims’ crime, we have seen this before. People act as fences. There are various ways that they’ve come into possession of items that have to do with a crime, came from a victim, but they had no involvement in the crime. Robert Clark from Georgia a few days after a victim was raped in the 1980s was found in the possession of the victim’s car, that had been taken from her during the assault. He said, “I got it from another guy, this guy Tony.” Nobody believed him. Two decades passed. He was in prison. We helped him get DNA testing. It excluded him, was run in the data bank, and, lo and behold, this guy Tony had gone on to do many other rapes and was in the system, and the DNA proved Clark was innocent and Tony was the actual assailant.

AMY GOODMAN: Vanessa Potkin, what happens now? We’re hours away from the execution.

VANESSA POTKIN: We need somebody to step in, whether it’s Attorney General Jim Hood, whether it’s the Mississippi Supreme Court, District Attorney Forrest Allgood, the Governor Bryant.

AMY GOODMAN: What about the U.S. Supreme Court?

VANESSA POTKIN: U.S. Supreme Court could. Somebody needs to stop this. It’s just unconscionable that an execution would go forward where there’s biological evidence that can cut to the truth and show whether or not he did the crime. What is anybody afraid of? The testing could take a couple weeks. And yet the state has fought this testing for over four years. The FBI has offered to do the testing. They think that it’s right. They have come forward and said, “We convicted this man, and he’s been sent to death row based on invalid science.” How can this go forward?

AMY GOODMAN: And the role of race in this case?

VANESSA POTKIN: The role of race—well, we know that if you are convicted of a crime where the victim is white, you’re far more likely to be sentenced to death row. There was a big problem at trial, where the—you know, it’s been argued that African Americans were kept from being on the jury. And, you know, this was a very heated, racially charged case from the beginning. And these are the types of cases that are even more prone to getting the wrong person, because there’s, you know, an outcry for justice.

AMY GOODMAN: Well, I want to thank you very much. We will certainly follow this case through today. People should go to our website at democracynow.org. Vanessa Potkin, senior staff attorney at the Innocence Project. Her group has raised concerns about the evidence used to convict Willie Manning, who is slated to die tonight at 6:00 p.m. Mississippi time. This is Democracy Now! Back in a minute.