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U.S. Supremes Give Skinner a Reprieve

Death row inmate awaits decision on DNA

By Jordan Smith, Fri., April 2, 2010

Skinner
Skinner

Less than an hour before he was to be executed, Hank Skinner, who was slated to die for a 1993 triple murder in Pampa, Texas, was granted a 30-day reprieve by the U.S. Supreme Court on March 24.

At issue in Skinner's case is whether he will have access to DNA testing for multiple items of physical evidence obtained from the crime scene but never before tested – including fingernail scrapings taken from Twila Busby, Skinner's longtime girlfriend who was brutally murdered along with her two grown and mentally disabled sons on New Year's Eve in the home the three shared with Skinner. A rape kit test taken from Busby was also never tested, along with two knives – one of which was likely a murder weapon – a bloody towel, and human hairs from a windbreaker also stained with sweat.

Skinner has long claimed he is innocent of the murders. He admits to having been in the house the night the family was killed but said that a cocktail of booze and codeine had left him knocked out; he did not wake until after Busby and her sons had been fatally attacked.

For more than a decade, Skinner has unsuccessfully tried to gain access to the untested evidence. He sued the Pampa district attorney in a federal civil rights suit seeking access that would "vindicate his due process right to 'fundamental fairness.'" That attempt was denied first in federal district court and then by the 5th U.S. Court of Appeals. Skinner appealed to the Supreme Court, which is still deciding whether to take the appeal. The order blocking Skinner's execution last week will give the court more time to decide whether it will hear the case.

The question of whether a death row inmate may use the civil rights statute to seek access to DNA testing is a controversial one that has split the circuit courts of appeal – a circumstance that also makes the issue ripe for the Supremes to take up. Currently, five circuits allow for such claims, two don't (including the 5th Circuit), and five remain undecided on the issue. The question, essentially, is whether an inmate may raise such a claim outside a writ for habeas corpus, the standard appeal mechanism in a capital case.

The Supremes' decision to step in and halt the execution – at least for the time being – let Gov. Rick Perry off the hook in having to decide whether he would do the same to keep Skinner alive while the issue of additional DNA testing plays out in court. Perry's office was inundated with letters from people asking him to grant a 30-day reprieve (the only power he has, absent a recommendation from the Board of Pardons and Paroles to commute or block the execution, which the board declined to make in Skinner's case), and his official Facebook page was overrun with messages imploring him to do the same. In the face of all that pleading, Perry remained silent. Additionally, he did not respond publicly to similar requests from state Sen. Rodney Ellis, D-Houston, and Austin Rep. Elliott Naishtat. "Post-conviction DNA testing of evidence could help resolve these questions," Naishtat wrote on March 23. "Governor, I believe we have time to answer questions in Mr. Skin­ner's case. We should take that opportunity to have moral certainty that justice is achieved in the case." Still, Skinner's execution day came and went without a peep from Perry's office.

But Rob Owen, head of UT School of Law's Capital Punishment Clinic and Skinner's lead attorney, said in a statement: "This action suggests that the Court believes there are important issues that require closer examination. We remain hopeful that the Court will agree to hear Mr. Skinner's case and ultimately allow him the chance to prove his innocence through DNA testing."

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