Another controversial death penalty case is brewing in Texas as Henry “Hank” Skinner races in both state and federal court for the chance to test crime scene DNA evidence.
Today, lawyers for Skinner, whose execution is set for November 9, asked Texas Gov. Rick Perry to issue a 30-day reprieve in the case.
Prosecutors argue that Skinner–who came within hours of death last year– is trying to delay justice. They say that Skinner’s lawyers made the conscious decision at trial to forgo the DNA testing because they feared it would further implicate their client. Texas officials say that Skinner shouldn’t be able to demand the testing post-conviction.
But lawyers for Skinner are appealing the decision.
“We are confident,” said Rob Owen, “that upon such careful review, the court will conclude that DNA testing is necessary.”
“The stakes 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 in denying his request for DNA testing,” said Owen in a statement.
Last year, hours before his scheduled execution, the US Supreme Court stepped in, halted the execution and eventually ruled that Skinner could go back to court and attempt to sue the state under federal civil rights law.
Since the high court’s ruling, Texas passed a new DNA law meant to ensure that procedural barriers do not prevent prisoners from testing biological evidence that hasn’t been tested.
Skinner hopes that either the state or federal court will rule in his favor and lead to his ability to test evidence and exonerate him for the 1993 murder of his former girlfriend Twila Busby and her two sons.
Busby was found bludgeoned to death with an axe handle in 1993 and Skinner was hiding 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.
Now, 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. ”
The state says the new DNA law requires Skinner to show a “reasonable probability” that further evidence will prove his innocence.
In a 21-page letter released Monday, Owen asks Gov. Perry to “take the time necessary to be scientifically certain of Mr. Skinner’s guilt before permitting him to be executed. ”
Supporters of Skinner claim to have obtained thousands of signatures on his behalf in an online petition campaign.