A week from today, Texas death row inmate Henry "Hank" Skinner is scheduled to be executed for the 1995 murders of Twila Busby and her two adult sons.
If that happens, it may be the biggest travesty of justice in the modern death penalty area. That isn't necessarily because Skinner is innocent. He may be guilty. I don't know. The problem is that the state of Texas also doesn't know. There is DNA from the crime scene that could exonerate Skinner -- or could affirm his guilt -- that has never been tested. That includes blood from the murder weapon, blood from a jacket left in Busby's home, a rape kit taken from Busby, scrapings from under Busby's fingernails and hairs she was clutching at the time of her death -- hairs that likely came from her killer. For more than a decade, Hank Skinner's legal team has tried to get that evidence tested, at no cost to the state of Texas. And for more than a decade, the Texas 31st District Attorney's Office has refused.
Skinner isn't exactly a poster boy for wrongful conviction. He had previously been convicted of assault, and by his own admission he was at the scene of the crime the night of the murders. Skinner's neighbor and ex-girlfriend told police that Skinner came to her home after the crime and implicated himself, then rattled off a number of contradictory stories.
But Skinner has maintained from the night he was arrested that he was passed out from a mixture of alcohol and codeine when the murders were committed. His defense team has produced testimony from toxicology experts who say Skinner had far too high a concentration of the drugs in his system for him -- a slight man at the time -- to have killed an adult woman and her two adult sons. At best he was groggy. He was likely unconscious. The state did conduct DNA testing on blood smears on Skinner's shirt, which matched two of the victims. But that could be consistent with Skinner's story, which is that he woke to find the bodies and tried to jostle the victims to see if they were still alive.
In 1999, journalism students at Northwestern University's Medill Innocence Project began investigating Skinner's case. Andrea Reed, Skinner's neighbor and ex-girlfriend, told them police had pressured her into giving false statements about Skinner, and that she no longer stood by the statements she gave on the night of the crime. The students also identified another potential suspect.
Friends and acquaintances of Busby say she had recently been stalked by an uncle named Robert Donnell. Busby told friends that Donnell had recently raped her. The students also discovered that Donnell had approached Busby at a party on the night of her death, and that neighbors had seen him cleaning and repainting his truck a few days after the murders. Donnell had also been seen wearing a windbreaker similar to the one left at the crime scene.
Donnell died in a car accident in 1997, two years before the Medill class took up the case. He was never considered a suspect by the police or the district attorney.
It's possible that a reasonable person might review the Medill students' work and still not find it convincing enough to overturn Skinner's conviction. Perhaps Reed's recantation years later isn't as credible as her statements to police on the night of the murders. Maybe it isn't plausible that Skinner could have slept through three violent murders, even while under the influence of booze and codeine. What's simply unfathomable -- especially if you believe the criminal justice system is in any way a quest for truth -- is that there is evidence that could confirm or disprove Skinner's story, and that he could be executed before it gets tested.
On a 2000 episode of the Nancy Grace show, Skinner advocate and Medill Professor David Protess challenged the then-D.A. to test the hairs Busby held at the time of her death. The prosecutor agreed. But when preliminary mitochondrial testing suggested a good chance that the hairs didn't belong to Skinner, the prosecutor halted any further testing on the hairs or on any of the remaining untested evidence.
"They only tested the material they thought would implicate Skinner," Protess told me in an interview last year. "They fixated on their suspect, and once they thought they had enough for a conviction, they stopped."
The D.A.'s office has since been dogged in its determination to proceed with the execution of Hank Skinner before there's any more testing. Texas law does give inmates the right to post-conviction DNA testing if they can show such testing would establish their innocence, but prosecutors in the case have argued for the last 10 years that the law does not grant testing to inmates who could have requested such testing at trial but did not.
The courts have agreed. The justification for the exception is that a guilty man could game the system by refusing or even fighting testing at trial, then fight for testing after conviction to buy himself some time before sentencing is carried out.
It isn't a very convincing argument, given that DNA testing would take at most a few months. If Skinner is indeed guilty, and if prosecutors had allowed for the testing back when Skinner's attorneys first requested, Skinner would have been executed years ago.
The other problem is that Skinner did ask for testing at the time of trial. His court-appointed attorney made a strategic decision to disregard his client's wishes, believing the testing would implicate him. That attorney, Harold Lee Comer, was a disgraced former prosecutor who lost his job after he was caught stealing money seized in a drug case. Skinner's trial judge, a friend of Comer's, assigned the attorney to represent Skinner and ordered him to be paid roughly the amount Comer owed the state for his own misconduct. In fact, Comer had actually prosecuted Skinner on an assault charge years earlier. So even if Texas law did allow prosecutors to refuse post-conviction DNA testing in cases where a defendant declined to pursue the testing at trial, it's not clear why that should apply in Skinner's case.
Last year, with Skinner less than an hour from execution, the U.S. Supreme Court granted a stay to consider whether federal civil rights law may allow Skinner to challenge the way Texas courts have interpreted the state law that allows inmates to get DNA testing post-conviction. In March the Court ruled 6-3 that it did. The Court didn't order the DNA testing. Rather, the decision only granted Skinner the ability to argue in federal court that Texas state courts had erred in how they applied the state's DNA testing law.
The Texas legislature has since rendered that question moot. Last June, both houses overwhelmingly passed a revision to the DNA testing law to clarify that inmates should be able to request testing even if their counsel did not request any at trial. Lawmakers even cited Skinner's case in passing the legislation. Hank Skinner, it seemed, would finally get his DNA tests.
And here's where D.A. Lynn Switzer began to appear determined to carry out the execution of Hank Skinner. The new law took effect on Sept. 1, 2011. Skinner's attorneys immediately filed for testing under the new law. Switzer's office responded by requesting an execution date. They got it: Nov. 9.
What happens from here isn't clear. A Texas state court is currently considering Skinner's petition for testing under the new state law. It seems likely that will be granted. At the same time, a federal court has kept Skinner's federal claim open in the unlikely event that the state court rules against him. But here's the strange thing: Skinner could still be executed before any of that is settled. In fact, that's exactly what many think Skinner's prosecutors are trying to have happen.
"Their position is that the evidence against Skinner is so overwhelming, no DNA test results could establish his innocence. We obviously think that isn't true," said Robert Owen, Skinner's attorney and co-director of the Capital Punishment Clinic at the University of Texas. "If the rape kit, the hair, the blood from the murder weapon and blood found elsewhere at the crime scene that didn't belong to the victims all fit the profile of a single person, and that person isn't Skinner, then I think it becomes clear that Skinner is innocent."
If Skinner is executed, it's unlikely we'll ever know about his guilt for certain. "It's something I'd rather not think about right now, but as far as I know, once he's been executed, there's nothing to prevent the prosecutors from destroying the DNA evidence," Owen says.
Several authorities could still prevent Skinner's execution. The federal court could issue a stay until the legal issues are sorted out, as could the state court. Skinner's trial judge could also postpone the execution date. Texas Gov. Rick Perry could issue a 30-day stay to allow for the DNA testing. Former Texas Gov. George W. Bush did just that in 2000, granting a stay to Rickey Nolen McGinn. Those DNA test results affirmed McGinn's guilt, and McGinn was executed. McGinn may have lied his way into another month of life, but the state of Texas got confirmation it was executing a guilty man. That hardly seems like a bad deal for Texas.
Of course, none of those other authorities should need to act. If District Attorney Lynn Switzer is able to put together a legal argument that allows her to execute Hank Skinner without first testing critical DNA evidence, even in spite of the new Texas law, it would represent a massive failing of the Texas and federal criminal justice systems. It would be an even greater failing if Skinner is executed before these questions are even settled.
But all of this ignores the fact that Switzer isn't required to make any of these arguments in the first place. It's one thing for a prosecutor to argue she has reviewed all the evidence in a case, and is still convinced of the defendant's guilt. The prosecutor, the courts and the public should not remain ignorant about critical evidence that has the potential to exonerate a man who is about to be executed.
The Hank Skinner saga touches on a number of lingering and important questions about the criminal justice system. But if Lynn Switzer is so convinced of Hank Skinner's guilt, she could agree today to turn over the DNA evidence for testing. Why she won't -- and why she and too many prosecutors like her get elected and reelected -- may be the darkest and most troubling questions of them all.
There are a number of sensible, easy-to-implement reforms that could improve the criminal justice system. But the biggest and most important challenge may be figuring out how to fill prosecutors' offices with people more interested in achieving justice than winning and preserving convictions.
UPDATE: The trial judge in Hank Skinner's case again denied DNA testing Thursday afternoon, in spite of the new Texas law.
In an emailed statement, Skinner attorney Robert C. Owen told The Huffington Post, "We are deeply disappointed that the trial court has denied Mr. Skinner's request for DNA testing. Unfortunately, the trial court's order offers no explanation for its conclusion that DNA testing is not called for in this case. It will now be up to the Court of Criminal Appeals to give Mr. Skinner's case the deliberate consideration that is necessary to ensure a correct result. We are confident that upon such careful review, the Court will conclude that DNA testing is necessary in this case to ensure the reliability of the verdict. But for now, the Court of Criminal Appeals must stop the scheduled November 9 execution rather than allow itself to be rushed to a hasty and ill-considered decision. The stakes in this case are too high to allow Mr. Skinner to be executed before he has a fair chance to make his case that the trial court made a grave mistake..."