Texas Might Execute an Innocent Man This Week

By Gawker

07 November 11

n Wednesday, Texas is scheduled to execute Hank Skinner for the murders of three people. For years, his lawyers have sought DNA testing of unanalyzed evidence, the results of which could prove his innocence - but the courts have rejected their requests every time. The "ultimate justice" machine stops for no one!

What brought Skinner to this place in life? Well, in 1995 he was convicted of the 1993 killings of his girlfriend, Twila Busby, and her two sons in the Panhandle town of Pampa. Busby was strangled and beaten, and the sons were stabbed. Skinner - who had kind of been a troubled goofball at the time - had been at the scene when the murders took place, but has always claimed he was passed out when they occurred. At his trial, he was represented by a former district attorney who had actually prosecuted him in the past and who himself had gotten into trouble (with the state bar) and resigned from his DA position not too long before becoming Skinner's lawyer. Skinner wanted DNA testing of all the evidence, but his lawyer thought that the results might incriminate him and didn't follow up on his request. Skinner was convicted and sent to death row.

Writing for The Nation, Austin Chronicle investigative reporter Jordan Smith notes that the untested DNA evidence includes "a windbreaker, spattered with blood, stained with sweat, and with two human hairs attached"; "two knives, one of which was a likely murder weapon"; "fingernail scrapings taken from Busby"; a rape kit, and a bloody towel. "With so much physical evidence surrounding the deaths of Busby and her sons, the potential for DNA leading conclusively to the killer was enormous," Smith writes. "But eighteen years later, none of the items has ever been tested." (Disclosure: I used to work with Smith.)

So why won't Texas test the stuff? Nowadays the state's post-conviction DNA laws are pretty solid, as evidenced by all the falsely convicted, exonerated prisoners who have walked out of Texas prisons over the past decade. Skinner's even offered to pay for the testing himself. But according to Smith, the local district attorney where Skinner was convicted has steadfastly fought all of Skinner's DNA test requests - and so far, the courts have sided with the district attorney. In 2003, for example, the Texas Court of Criminal Appeals said Skinner couldn't get his mountain of evidence tested because he couldn't prove that the test results would have prevented his prosecution. The CCA's argument is pretty nuts, because Texas prosecutors will prosecute just about anyone or anything (if they're not white and rich). The average Texas prosecutor would prosecute a Panhandle prairie dog for being excessively cute. They are abundantly passionate about their jobs.

In 2007, the state loosened DNA testing restrictions, and Skinner filed another request for testing. This time, the New York Times notes, the Texas Court of Criminal Appeals "said that new DNA tests would not prove his innocence, and that he should have requested the testing at his original trial." Remember, Skinner did request the testing at his original trial. His lawyer just didn't act upon it.

This year, the state loosened its post-conviction DNA testing restrictions yet again, and Skinner's lawyers filed another request for a test. But the Texas attorney general denied it, the Times informs us, "because the [CCA] has already twice denied testing" and "found that no exculpatory test results could possibly prove Skinner's innocence." How does the Court know? "Because," the attorney general might say.

Why might the CCA be wrong? Because:

• Toxicology reports show that, in addition to vodka, he had a "near fatal dose" of drugs in his system on the night of the murders, and was comatose.



• How could he capably murder three people if he were comatose?



• In 2000, the state tested hair found at the crime scene and learned that it wasn't Skinner's. After getting this result, the state stopped all hair testing, Smith reports.



• Skinner's ex-girlfriend, who had been a witness for the state, recanted her statement a few years after the trial.



• There were other potential suspects, including Busby's uncle, Robert Donnell - who had reportedly stalked, sexually assaulted, and threatened to kill her.



• "Neighbors also reported seeing Donnell cleaning his truck with a hose and stripping the carpet from it within a week of the murders," Grissom reports. Sudden onset of OCD? Probably not.

Skinner could receive a reprieve from one of three places: The U.S. Supreme Court, the Texas Criminal Court of Criminal Appeals, or Governor Rick Perry. But that's like being in the chow line and staring down at a buffet of food loaf, Marmite casserole, and spam chops. "He has no illusions about an overly politicized system to expect that the truth will carry the day," says his wife. At least 131,000 people have signed a petition on Skinner's behalf, and a slew of Texas officials and law enforcement types have requested DNA testing. Whether it will make a difference, who knows. Ultimate justice is about balls, and "balls have ears like prairie dogs have lawyers," as they say, maybe somewhere in the Panhandle, or in some other desolate part of West Texas where everything can be reduced to prairie and animal sayings.

If Skinner dies this week, he'll join a growing afterlife-based community of men executed for crimes they might not have committed. Cameron Todd Willingham, executed in Texas in 2004, was convicted based on "unreliable fire science," as the Texas Forensic Science Commission admitted in October 2011. Georgia just executed Troy Davis despite lingering and serious questions about his guilt. There are others.