Oct 13, 2010— -- The Supreme Court heard arguments today about whether it should come to the aid of a Texas man on death row for a second time, this time by allowing him access to DNA evidence that he hopes will prove him innocent.
Hank Skinner has been on Texas' death row since 1995, convicted of bludgeoning to death his girlfriend and stabbing to death her two mentally disabled sons on New Year's Eve in 1993. His lawyers argue that police at the time did not test for DNA all of the physical evidence, including blood found on the murder weapons.
Forty-eight states have rules on the books allowing for DNA testing of evidence following a conviction. Last year the court ruled that convicts had some recourse for DNA testing, but only in special and limited circumstances.
Today's hearing hinges on whether Texas law, which has denied Skinner the opportunity to seek new DNA testing, too narrowly opens the door for prisoners to seek additional testing after they have been convicted.
"Our argument is that the Texas statute was enacted to grant, essentially, protection to a class of inmates who were wrongfully convicted and can prove that with DNA evidence," Skinner's lawyer Robert Owen told the court. "[Texas] then interprets that statute in a way that needlessly chops a bunch of those inmates out."
Owen called the Texas ruling "arbitary" and that it did not take into consideration "the likelihood of innocence."
In March 2009, just 45 minutes before he was to enter the death chamber and moments after completing his last meal of cheeseburgers, catfish and chicken thighs, Skinner was subject to one of the rarest writs in U.S. law – an eleventh hour stay of execution by the Supreme Court.
Prior to the trial 16 years ago, the prosecution ordered DNA testing on some, but not all of the evidence. Skinner's then-lawyer had the opportunity at trial to demand more testing, but chose not to.
Skinner has never denied he was at the crime scene. He has instead insisted that he was "out cold," too drunk from a night of binging and drug use to have committed the murders.
Skinner says the real killer was his girlfriend's uncle, Robert Donnell, whom Skinner claims was a violent man who made unwanted sexual advances towards the woman on the night of her death. Donnell was killed in a car crash in 1997.
In a jailhouse interview with Skinner in April, one month after he received the stay, he told ABC News his lawyer did not seek further testing because he did not want to give the prosecution more ammunition in case it came back positive.
"The lawyer's explanation to me at the time was, under the code of criminal procedure… the district attorney has a duty to exclude as well as convict. He said: 'If I were the district attorney I would test all of this evidence, but I am not going to test it because I am your attorney and I am not going to get you convicted if something happens," Skinner said.
"[If this] could happen to me it could happen to you, your mother, your brother, your son your uncle. It erodes faith in the judiciary, it erodes faith in the district attorney's office. They just do not want to admit they made a mistake no matter what," he said.
In 2000, Skinner's case was picked up by a group of students from the Medill Innocence Project at Northwestern University in Evanston, Ill. Led by their teacher, David Protess, students had already helped win stays of execution for 11 inmates on death row in Illinois by the time they took up Skinner's case.
The students interviewed Andrea Reed, the prosecution's star witness at the time of the trial who said Skinner told her he killed Busby. Reed later recanted her testimony and told Protess' group she "felt pressured" by prosecutors to implicate Skinner.
Four lower courts have overturned Skinner's earlier appeal. The Supreme Court is not concerned about the facts of the case, but only whether Skinner was denied his Constitutional right to evidence that could free him, or if he's just trying to game the system after the fact.
"This is an attack on the criminal proceeding," said Gregory Coleman, the lawyer representing Texas.
"The moment you file the complaint through discovery, through every substantive aspect of that, what Mr. Skinner wants to do is say, I want to engage in artful pleading, and so I'm going to make attacks. Today they are on DNA evidence, tomorrow they may be a Brady claim, next week it may be a claim against procedures used in State habeas; but as long as I don't expressly ask that my custody be undone, expect those claims to be allowed to go forward…," he said.
Skinner maintains his innocence and believes the DNA testing will prove he has been kept unjust in prison for 15 years.
"I never got to grieve for my girlfriend's loss," he told ABC News. "I woke up, my family was dead, and I am holding the bag for something I didn't do. I have lost 15 years of my life sitting here for something that I didn't do, and now they still want to kill me even though I have exculpatory evidence that proves my innocence. It is all something out of the Twilight Zone; I tell my lawyers this all the time, it is like Tales from the Dark Side. It doesn't make any rational sense and like I told the people who interviewed me, you can ponder it and go insane or you can live each day, breath by breath and that's what I do."