In Texas execution first, DNA testing later

Update 24 October

(Conversation between Skinner and German filmmaker, Werner Herzog.)

By The Huffington Post

Hank Skinner, 49, has been on death row in Texas since 1995 for the murders of his girlfriend and her two adult sons in their Panhandle home. He has steadfastly professed his innocence.

In recent years, the State's star witness recanted her testimony to my journalism students and others, and several witnesses told the students that the female victim's uncle (now deceased) was the likely killer.

And, there is DNA. Some DNA tests, including on a trail of blood leading from the home, excluded Skinner. Other tests placed Skinner at the scene. (He was a frequent visitor to the home and claims he passed out the night of the crime from a combination of codeine and alcohol. A witness and two experts back his story.)

But most stunning is the physical evidence that has never been tested. The rape kit was not tested. The murder weapons were not tested. Several hairs clutched in the female victim's hand were not tested. A distinctive windbreaker strongly resembling the uncle's found two feet from her body and covered in blood? Not tested.

Since 2000, Skinner has repeatedly asked the local D.A. and the courts to order tests on the remaining evidence, confident they would prove his innocence. Each time, his plea has been denied on the grounds that he did not make the request before his trial. So, on March 26, 2010, Texas planned to execute Skinner while the evidence sat in a storage locker controlled by the current D.A., Lynn Switzer.

Less than an hour before the execution, Skinner's fortune changed -- for the time being. While munching on his last meal, he learned from his lawyer that the U.S. Supreme Court had issued a temporary stay. Prison guards abruptly escorted Skinner from his holding cell outside the execution chamber in Huntsville to his cell on death row in Livingston.

A few weeks later, the Court agreed to hear the case before another attempt could be made on his life. Finally, in a landmark decision earlier this year, the justices ruled 6-3 that Skinner had the right, under federal civil rights law, to sue D.A. Switzer to seek access to the remaining physical evidence for possible DNA testing.

As a federal magistrate in Texas considered the lawsuit that quickly followed, Skinner had another temporary stroke of good fortune. In May, the Texas legislature overwhelmingly passed a bill guaranteeing the right to post-conviction DNA testing, and in June Gov. Rick Perry signed it into law. The bill's sponsor publicly said that it was designed for cases like Skinner's and in memory of another prisoner, Tim Cole, who tragically died behind bars before DNA tests proved his innocence.

Suddenly, Skinner had two chances for justice: the federal lawsuit against the D.A. to gain access to the physical evidence in his case, and a new state law assuring the tests.

What happened next defies imagination. A Texas judge, days before the new statute went into effect and the DNA motion was filed, set another execution date for Skinner: November 9th. That's right. Skinner is scheduled to die in a month -- while two judges continue to contemplate whether he can test the evidence that might clear him.

Under other circumstances, the courts would issue a stay of execution and allow both civil actions -- one authorized by the highest court in the land, the other by the state legislature -- to move forward. Unfortunately for Skinner, however, the U.S. magistrate almost certainly lacks the authority in a federal civil case to issue a stay of execution in Texas. How about the state court judge with the DNA motion on his desk? He happens to be the same judge who set Skinner's execution date for November 9th.

Without intervention by the Texas Court of Criminal Appeals, Gov. Perry, or the U.S. Supreme Court, Hank Skinner may well die before the DNA tests can be conducted. Welcome through the looking glass into the criminal justice system, where up is down, and down is up.

Fighting back, Skinner's advocates have posted a petition asking D.A. Switzer to "do the right thing" and order the tests on her own. And Skinner has gained support for his cause from, among others, six of the jurors who found him guilty and voted for death.

Although this sordid episode is unfolding in Texas -- a state that has already performed almost one-third of the country's executions this year -- it is not too late to speak out with Georgia still on your mind. Troy Davis would have liked that.