Texas Death Row Inmate Wants Access to Untested DNA

Oct 24, 2011 8:31am

A Texas death row inmate who was hours from execution in 2010, now finds himself with two new avenues of appeal to attempt to prove his innocence through DNA testing.

For years since his murder conviction, Henry “Hank” Skinner had unsuccessfully sought access to untested DNA evidence found at the scene of the crime.

Last year, hours before his scheduled execution, a final appeal to the Supreme Court went in Skinner’s favor. The justices halted the execution and eventually ruled that he could go back to court and argue his case.

The ruling from the Supreme Court, coupled with a new DNA law passed in Texas last month, have given Skinner new hope that he might one day be found innocent of the death of his girlfriend and her two sons.

Skinner’s girlfriend, Twila Busby, was bludgeoned to death with an axe handle in 1993 and her sons were stabbed. Skinner was found nearby with his clothes soaked in the victims’ blood.

Skinner claims that he could not have committed the crimes because he was incapacitated by alcohol and codeine. At his trial his lawyers chose not to ask for additional testing of knives found at the scene, the axe handle, vaginal swabs, fingernail clippings and additional hair samples. Skinner was convicted and sentenced to death.

While the Supreme Court did not weigh in on his guilt or innocence it said he could go to federal court and attempt to sue state officials under federal civil rights law.

At the same time, Skinner’s lawyers are pursuing a separate appeal in state court. Just last month Texas revised its DNA law to ensure that procedural barriers do not prevent prisoners from testing biological evidence that hadn’t been tested. Skinner’s lawyers have filed papers asking the court, pursuant to the new law, to compel the DNA testing.

“We are proceeding both in federal court and state court,” says Skinner’s lawyer, Rob Owen, “to leave no stone unturned.” Complicating Skinner’s appeal is that the trial judge set a new date for his execution in early November.

But the State of Texas believes that Skinner is abusing the system.

In court papers, Jonathan F. Mitchell, the Solicitor General of Texas, argues that at the time of his trial Skinner’s original attorneys made an “informed, tactical” decision to forego the testing because they feared it would further implicate their client. Mitchell notes that Skinner was convicted on an “overwhelming evidence of guilt” tied to physical evidence as well as his own statements. Mitchell argues that if the state allowed Skinner access to the materials he initially declined to test, it would set a dangerous precedent.

“If Skinner is allowed to test this DNA evidence,” Mitchell argues,” then every guilty criminal defendant will want to forego DNA testing at trial and then use the untested DNA evidence as a post-conviction litigation tool to endlessly delay or hinder implementation of the sentence. ”

Owen does not understand why the state is putting up such a fight.

“Why wouldn’t the state want to make sure that they have the right guy before carrying out the ultimate punishment,” he asks.

On Monday the parties will appear in federal court to address the changes in Skinner’ case and the fact that a new date for his execution, November 9, is quickly approaching.

In April of 2010 Skinner told ABC”s Ryan Owens, “I shouldn’t be dead because I am innocent.” He said, “I think it is a safe bet that the evidence points to someone else not me. I know that for a fact because I didn’t do it. I have full confidence that if we get the testing it is going to exonerate me.”

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