2 May 2012
Death row inmate Hank Skinner’s decade-long fight for DNA testing, which he hopes will prove his innocence in a grisly West Texas triple murder, will take center stage this morning in the state’s highest criminal court.
Skinner, now 50, was convicted in 1995 of the strangulation and beating death of his girlfriend Twila Busby and the stabbing deaths of her two adult sons on New Year’s Eve 1993 in Pampa. Skinner maintains he is innocent and was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine.
A decision from the Texas Court of Criminal Appeals could take weeks or months.
For more than a decade, Skinner has asked the courts to allow testing on a slew of evidence that was not analyzed at his original trial: a rape kit, biological material from Busby’s fingernails, sweat from a man’s jacket, a bloody towel and knives from the crime scene.
Lawyers in the Texas attorney general’s office argue that Skinner is only trying to put off his inevitable execution and that the evidence of his guilt is so overwhelming that DNA testing is unwarranted. But Rob Owen, one of Skinner’s lawyers and the co-director of the University of Texas at Austin’s Capital Punishment Clinic, said he is hopeful the Texas Court of Criminal Appeals will finally allow the testing.
“The facts of Mr. Skinner’s case bear some of the hallmarks of wrongful conviction cases from around the country,” Owen said. “For all these reasons, none of the state’s arguments diminish the urgent need for DNA testing in his case.”
The appeals court has denied Skinner's previous requests for testing, citing restrictions in the 2001 post-conviction DNA testing law. Lawmakers over the last several years, though, have repealed the restrictions that the court cited. Most recently, during the 2011 legislative session, lawmakers repealed part of the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the fault of the defendant.
In Skinner’s case, his original trial lawyers chose not to request DNA testing on all of the evidence available because they worried that it would further implicate him. Lawmakers referred to his case when they repealed the provision last year, and the court of appeals stayed Skinner’s execution date in November so it could “take time to fully review the changes in the statute as they pertain to this case.”
Today, lawyers for Skinner, who is at the Polunsky Unit in Livingston, will argue to the court that legal impediments to the testing that previously existed are gone. DNA testing, they say in court documents, could reveal not only that the death row inmate is innocent, but it could point to the real perpetrator.
“The State may well have the wrong man, and, in combination with exculpatory DNA results, evidence that would very likely leave a rational jury harboring reasonable doubt about his guilt,” Skinner’s lawyers wrote in a brief to the court.
The court must only decide whether the results of DNA testing, combined with other evidence, could cause a jury to have reasonable doubt about Skinner’s guilt, his lawyers argue.
Skinner's lawyers theorize in court filings that it was Busby’s uncle, Robert Donnell, who killed her. Witnesses reported seeing Donnell, who has since died, harass Busby at a party the night before the killing. The two had previously had sexual encounters, he had a violent history and neighbors reported seeing him cleaning his truck with a hose and stripping the carpet from it days after the murders.
Skinner’s lawyers contend that toxicology reports show that Skinner would have been too inebriated at the time of the crimes to have been physically capable of strangling Busby to unconsciousness, stabbing her 14 times and then stabbing her two large sons to death.
Additionally, the one witness who said Skinner confessed to the murders — an ex-girlfriend of his — has since recanted her testimony, saying authorities coerced her.
But lawyers for the state argued in a court brief that “nothing that DNA testing might reveal would lead a jury to acquit Skinner of involvement in these murders.”
Skinner’s former girlfriend’s recantation, they charge, was untruthful. Skinner, an admitted alcoholic, they say, would have been more tolerant of the chemicals he had ingested.
State lawyers also submitted a statement that Skinner gave to the sheriff just hours after the murder in which he described a fight he had with Busby the night she was killed. “I can see me arguing with Twila. I can might even see maybe I might have killed her. But I can't see killing them boys,” he said. (That statement was not admitted during trial because, Skinner’s lawyers wrote, it was taken while Skinner was deprived of sleep and still under the influence of painkillers he was given for an injury to his hand the night of the murders, and the prosecutor didn’t attempt to have it admitted because he said he "knew darn well it wasn't admissible" because "it was so blatantly violative of the defendant's rights.")
The state also argues — despite the repeal of the provision prohibiting testing in cases where inmates chose not to have evidence analyzed previously — that the court should deny the testing because Skinner elected not to do it at his trial. Lawmakers, state lawyers said, did not intend to allow a defendant to “lie behind the log” during trial and then seek DNA tests later to prolong his life.
“Skinner's transparently false claims of innocence do a grave disservice to the truly innocent prisoners who sit behind bars, who are less likely to be believed when inmates such as Skinner demand post-conviction DNA testing as a means of subverting capital punishment and delaying their eventual execution date,” state lawyers wrote in their March brief to the appeals court. “The State of Texas would never oppose the efforts of a wrongfully convicted inmate to clear his name and vindicate his innocence in court.”
Comments
Judges Question State's Efforts to Stymie DNA Tests
The Texas Tribune 2 May 12
Sensitive to dozens of DNA exonerations in recent years, judges on the nine-member Texas Court of Criminal Appeals today grilled the Texas solicitor general about what harm could be done by granting death row inmate Hank Skinner's decade-old request for biological analysis of crime scene evidence.
"You really ought to be absolutely sure before you strap a person down and kill him," Judge Michael Keasler said.
Oral arguments in the hearing wrapped up today. It could take weeks or months for the court to render a decision on whether to allow DNA testing in the case.
Skinner, now 50, was convicted in 1995 of the strangulation and beating death of his girlfriend Twila Busby and the stabbing deaths of her two adult sons on New Year’s Eve 1993 in Pampa. Skinner maintains he is innocent and was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine.
For more than a decade, Skinner has asked the courts to allow testing on crime scene evidence that was not analyzed at his original trial, including a rape kit, biological material from Busby’s fingernails, sweat and hair from a man’s jacket, a bloody towel and knives. His lawyer, Rob Owen, co-director of the University of Texas at Austin’s Capital Punishment Clinic, told the court that if DNA testing on all the evidence points to an individual who is not Skinner, then it could create reasonable doubt about his client's guilt.
"It changes the picture," Owen said. "Having the DNA evidence makes the jurors look at other pieces of evidence differently, because I think jurors are inclined to accept DNA evidence as reliable."
Texas Solicitor General Jonathan Mitchell told the court that there is such "overwhelming evidence" of Skinner's "actual guilt" that DNA testing could not undermine the conviction. Mitchell argued that Skinner had his chance to test the evidence at his trial, but he chose not to. Skinner is now using the fight for DNA analysis as a frivolous attempt to delay his inevitable execution, Mitchell added. Allowing Skinner testing at this late point in the process, Mitchell said, would set a dangerously expensive precedent for guilty inmates. In future cases, he said, prosecutors would feel obligated to test every shred of evidence to prevent a guilty defendant from delaying his sentence by requesting additional DNA results.
"Prosecutors will have to test everything, no matter what the cost," Mitchell told the court.
"Prosecutors should be testing everything anyway," Keasler said.
The Court of Criminal Appeals has previously denied Skinner's requests, citing restrictions in the state's 2001 post-conviction DNA testing law that have since been repealed. Most recently, during the 2011 legislative session, lawmakers repealed part of the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the fault of the defendant.
The court of appeals stayed Skinner's Nov. 9 execution date so they could determine how the change to the law should apply to his case.
The tough questions for the state today came as something of a surprise from the court, which typically favors prosecutors.
Mitchell told the court that legislators did not intend to allow defendants like Skinner to reject testing at their original trial but then use it later to delay their executions.
In Skinner's case, his trial lawyers decided not to seek testing on all of the evidence because they feared it would further implicate him in the crime. And state Sen. Rodney Ellis, D-Houston, who authored the bill that repealed the fault provision, has explicitly said that he aimed to allow testing in cases like Skinner's.
Judge Keasler said Mitchell's argument that legislators didn't intend to allow testing in Skinner's case seemed illogical.
"It at least signals to anybody with any sense that when the Legislature does away with the fault provision, they're doing just that, and it seems particularly applicable here," Keasler said.
Judge Elsa Alcala countered Mitchell's argument that the evidence against Skinner was "overwhelming." Mitchell pointed to the fact that Skinner — who never disputed that he was in the house at the time of the murders — had blood from the victims on his clothing and his bloody handprints were at the house and to statements he made to police that intimated he might have done it.
The case, Alcala said, "is not overwhelming, it's circumstantial." She gave little credit to a statement that Skinner gave shortly after the murders in which he told police he had fought with Busby and might have killed her. The statement was not used in Skinner's trial and the prosecutor has said he knew it was inadmissible. If there were DNA linked to another person at the crime scene, Alcala said, a jury might give more credence to Skinner's contention that someone else committed the murders while Skinner was passed out on the couch.
"DNA has exonerated people where there has been confessions to police officers," Alcala said. "The fact there is a confession to a police is not the end all."
Alcala also swatted down Mitchell's argument that Skinner was frivolously delaying his execution with repeated requests for DNA testing.
"If you had tested this upon their first DNA motion 10 years ago, we would have had results 10 years ago," Alcala said. "Under your theory, they would have showed Skinner's guilt, and he would have been executed nine years ago."
Judge Cheryl Johnson challenged Mitchell's assertion that Skinner had deliberately chosen to forgo DNA testing at trial so that he could delay his execution by seeking the analysis later. Texas did not adopt its post-conviction DNA law until six years after Skinner's conviction.
Referring to recent "embarrassing incidents" in which DNA has led to the exonerations of people who spent decades in prison — there have been at least 47 DNA exonerations in Texas, including two Dallas men who were wrongfully convicted of rape and freed Tuesday — Judge Cathy Cochran questioned the state's continued resistance to Skinner's request.
"Why not just lay this all to rest by doing the DNA quickly after low these 12 years?" she asked. "Wouldn’t we be better off saying, 'Shew! Thank goodness there wasn’t an issue here at all,' rather than leaving the issue open to concern by everybody?"
Owen said that if the court allowed testing, it would take about six to 12 weeks to complete and that Skinner would pay for it. In an interview outside the court, Owen said he saw hopeful signs for his client during today’s hearing.
"The point the judges made was that the truth is stranger than fiction sometimes," Owen said. "You don’t ever know until you do the testing."
Texas grilled over Death Row inmate's DNA testing
Excerpts from the Star-Telegram, Arlington
Texas Solicitor General Jonathan Mitchell told the court allowing DNA testing at this late point would set a dangerously expensive precedent for guilty inmates.
In future cases, he said, prosecutors would feel obliged to test every shred of evidence to prevent a guilty defendant from delaying his sentence by requesting additional DNA results.
"Prosecutors will have to test everything, no matter what the cost," Mitchell told the court.
"Prosecutors should be testing everything anyway," Judge Michael Keasler said.
Previously, the criminal appeals court denied Skinner's requests, citing restrictions in the state's 2001 post-conviction DNA testing law that have since been repealed.
Most recently, during the 2011 legislative session, lawmakers repealed part of the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the defendant's fault.
Judge Elsa Alcala countered Mitchell's argument that the evidence against Skinner was "overwhelming." The case, Alcala said, "is not overwhelming, it's circumstantial."
Referring to recent "embarrassing incidents" in which DNA has led to at least 47 exonerations in Texas, including those of two Dallas men freed Tuesday, Judge Cathy Cochran questioned the state's continued resistance to Skinner's request.
"Why not just lay this all to rest by doing the DNA quickly after these 12 years?" she asked.
Solicitor General: DNA testing "frivolous"
From The Huffington Post
Texas law enforcement officials have come up with some mighty creative legal arguments over the years to justify executing Hank Skinner without first testing evidence that could prove his innocence -- or confirm his guilt.
At times, they claimed the tests would be costly to the taxpayers. Then Skinner's legal team agreed to pay for the tests.
Shifting gears, they argued that Skinner had waived his right to the tests when he didn't request them before his trial. Then Gov. Rick Perry signed legislation that ensured post-conviction DNA testing in cases like Skinner's.
So, at the Texas Court of Criminal Appeals on Wednesday, they needed an imaginative pitch to persuade the nine judges not to apply the new DNA law to Skinner's case. That chore fell to Solicitor General Jonathan Mitchell, who told the judges -- presumably with a straight face -- that the request for DNA testing was merely a "frivolous" attempt to delay Skinner's execution.
Frivolous? Excuse me?
Decide for yourself whether this untested evidence from the crime scene, a triple homicide in a Panhandle home in 1993, is "frivolous."
A blood-spattered, sweat-stained windbreaker found two feet from the body of Twila Busby, who was murdered along with her two adult sons. The jacket did not belong to the victims or Skinner.
A rape kit used to gather evidence from the partially clothed Busby, and hairs found clutched in her hand.
A bag containing bloody knives -- indisputably the murder weapons -- and a bloody cloth.
This evidence sure wasn't considered frivolous by the jurors who convicted Skinner in 1995, but they were shocked to learn in recent interviews that Texas was fighting the tests. Six of the jurors now oppose Skinner's execution until the tests are done.
So what's really behind Texas' decade-long battle to prevent the testing? Last November, I reported in the Huffington Post that Texas feared what the results might reveal. When the D.A. who prosecuted Skinner secretly conducted tests on some of the evidence after the trial, he was stunned to learn that several of the results excluded Skinner. Bloody gauze from the front sidewalk, blood on a cassette recorder and hair taken from the female victim's hand -- all pointed to someone else.
But who? Mounting evidence suggests that Twila, Busby's uncle, may have been in the home that night. He had been stalking her at a New Year's Eve party right before the murders, had left the party soon after she headed home, and was seen scrubbing clean his pick-up truck on New Year's morning. Perhaps most important, the uncle regularly wore a windbreaker exactly like the one found next to his niece's body.
No wonder Texas lawmen don't want that jacket tested. No wonder they have gone to great lengths to fight forensics on the rape kit and murder weapons -- or any further DNA testing after the exculpatory results were reported to the D.A.'s office.
Fortunately, the judges of the Texas Court of Criminal Appeals don't seem to be buying what the prosecution is selling. Frivolous? Here's a sample of what the judges had to say during the oral arguments on Wednesday:
Judge Elsa Alcala: " [The evidence against Skinner] is not overwhelming. It's circumstantial... If you had tested this... 10 years ago, we would have had results 10 years ago. "
Judge Cathy Cochran: "Why not just lay all this to rest by doing the DNA quickly? We've had some rather embarrassing incidents in the last couple of years." [There have been 47 DNA exonerations in Texas.]
Judge Michael Keasler: "Prosecutors should be testing everything... You ought to be absolutely sure before you strap a person down and kill 'em."
The judges are expected to hand down their ruling by summer.
Meanwhile, Hank Skinner continues to profess his innocence from a 6.5 by 10.5 feet cell on Death Row, his home for 17 years. He admits he was in the Busby home that night, but says he passed out on the couch from a potentially lethal mix of alcohol and codeine -- a claim supported by a witness and two experts in toxicology.
Since Skinner was sentenced to death in 1995, Texas has executed more than 400 prisoners. Several had become Skinner's friends, he told me in a recent letter. He has twice come within a hair's breath of execution, once when a got a stay as he sat outside the death chamber with less than an hour to live. He longs for human touch, having not shared an embrace since his lawyers hugged him following a DNA hearing six years ago.
Despite the ordeal, Skinner believes DNA tests will exonerate him and he will be freed. But he has a nagging concern about the evidence. Has the state properly preserved it? All of it? What about the windbreaker?
If the Texas Court of Criminal Appeals grants the motion for DNA testing, a little blood and sweat on a jacket may be the difference between life and death for Hank Skinner. Could anything be less frivolous?
The (slow) education of Texas prosecutors
http://gritsforbreakfast.blogspot.com.au/2012/05/legislature-post-convic...
The worst-case scenario is executing Mr. Skinner, testing posthumously and finding out he didn't do it. Otherwise, if he is really guilty, testing removes all doubt and prevents a great deal of torment and controversy in the future for family and friends of the victim. Since the defense has agreed to pay for testing, at this point there's no good reason, legal or otherwise, not to get it over with. Judging from the media coverage, it sounds like at least five judges on the Court of Criminal Appeals will probably agree.
Tampering with or disposing of the the DNA
They will tamper with the DNA-containing evidential materials or make them disappear.
Texas AG's office rebuked by three courts in five days
Texas AG's office rebuked by three courts in five days
DNA clears two more Texans of rape
Editorial: Exonerations point at urgency of reform
Why Texas is fighting so hard against DNA-testing