Texas Lawman to High Court: DNA Testing "Frivolous" in Death Penalty Case

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?