Update  may 2 2012  Source : http://www.texastribune.org

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 tought 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.

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May 2, 2012 Source : http://www.texastribune.org

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.”

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Oral Argument  may 2 2012,  9.a.m  pdf file 

AP-76,675 HENRY W. SKINNER GRAY
DNA
Robert C. Owen for the Appellant
Jonathan F. Mitchell for the State