Bush, who staunchly defends all 131 executions performed during his tenure in Austin, is taking a renewed interest in the 43-year-old's case under the harsh glare of the national spotlight. McGinn has been on death row since 1995 for the murder and rape of his 12-year-old stepdaughter, Stephanie Flanary. Because the evidence supporting the murder charges was so overwhelming, no one has challenged that aspect of his conviction. But in Texas, a murder conviction alone is not a capital crime; the killing must be accompanied by an aggravating crime, like rape, in order for the perpetrator to end up on death row. McGinn's lawyers are challenging the prosecutorial evidence linking their client to Flanary's rape, claiming the old-style DNA tests performed on evidence collected from her body were inconclusive. The defense attorneys are demanding a test using improved methods which they feel would exonerate McGinn of the ruinous second conviction.
Bush, who stands among the nation's most vocal supporters of the death penalty, faced a very public decision as he weighed McGinn's fate. And by granting McGinn a stay of execution and recommending the DNA tests, Bush executed an unalloyed about-face, knowing the case could very well come back to haunt him in November. The stay was the only alternative to execution: Under Texas law, the governor cannot change McGinn's sentence without the approval of state parole board, which has voted overwhelmingly to proceed with the execution.
Politically, Bush was confronted with a sort of Catch-22. Had he taken the resolute route, standing by his record and refusing to grant McGinn's stay, he would have endured aggressive attacks from death penalty opponents. But by playing his "compassionate conservative" card, and granting the stay of execution, he's made himself vulnerable to charges of hypocrisy and cold-hearted political posturing. And Bush must know that regardless of McGinn's ultimate fate, the press will continue an increasingly energetic investigation into past death penalty cases in Texas, throwing an unwelcome light on any lurking skeletons in the annals of Texas criminal justice.
"Bush definitely has a problem here," says TIME Washington correspondent Jay Carney. "He's executed more prisoners than any other governor, and his attitude so far has been pretty cavalier." And while Bush publicly insists that every single person put to death on his watch has been guilty and that his equivocation over the McGinn case has nothing to do with his campaign, he's only human, and he may be plagued by moments of doubt. In political terms, Bush saw the McGinn case as an opportunity to prove he's not unreasonable about the death penalty, adds Carney. Not to mention a great chance to show moderate voters how well he negotiates the hallowed middle ground.