Last-Minute Appeals on Skinner Execution

Among the items at the bloody crime scene was a windbreaker – spattered with blood, stained with sweat, and with two human hairs attached – found next to the body of victim Twila Busby, who had been bludgeoned to death. Also at the scene, in the Pampa home she shared with her two sons and her boyfriend, Hank Skinner, were two knives – one of which is a likely murder weapon – and a bloody towel. Although likely dispositive of what happened in the home that night in 1993 – a grisly crime that left Busby and her two sons dead – none of the items has ever been tested for DNA; neither have fingernail scrapings taken from Busby nor swabs obtained from her rape kit.

Nonetheless, Skinner, who was convicted and sentenced to die for the triple murder, is slated to be executed Nov. 9 for the crime – one he persistently says he did not commit, though he admits he was in the home that night but says he was knocked out by a cocktail of booze and pills and awoke to find the carnage – unless Gray County District Attorney Lynn Switzer (perhaps at the urging of Gov. Rick Perry) or the courts demand that the evidence, which could demonstrate that someone else was at the crime scene, be turned over and finally tested. "Common sense would dictate that you'd do the DNA testing, since it can bring us closer to certainty about what happened," Rob Owen, one of Skinner's attorneys, told Public News Service. "Why the D.A. would not want to remove these doubts is a mystery to me."

Skinner's attorneys have been seeking access to the crime scene evidence since 2001, the year that Texas first passed a post-conviction DNA statute. The D.A. balked at the request and the Court of Criminal Appeals ultimately ruled against Skinner, opining that DNA alone wouldn't necessarily be enough to conclusively demonstrate his innocence. In 2007, Skin­ner's team tried again; this time, they brought new facts to bolster their DNA testing request. Rejecting the claim a second time, the appeals court changed course: Skinner would not be allowed access to the evidence because his trial attorney never requested testing; it was therefore Skinner's fault that the evidence remains untested. That prompted Skinner's attorneys to file a federal civil rights lawsuit in order to gain access; the U.S. Supreme Court ruled that Skinner may indeed take that route.

This year, however, the Legislature passed a new DNA testing law that eliminates the "fault" provision that previously blocked Skin­ner's access to the evidence. On Sept. 6, citing the change in law, Skinner filed a new bid to have the evidence turned over. The state waited five weeks to respond to the request, which is still pending in state court. Mean­while, last week the case was back in federal court, where the state argued that the federal lawsuit should be rendered moot and set aside since the matter is still pending in state courts. In a recommendation to the district judge, a federal magistrate rejected that bid and said instead that the action should be stayed, pending state action.

With Skinner's execution scheduled for Nov. 9, time is of the essence. Seventeen current and former state officials and law enforcers – including six former assistant county prosecutors – wrote in an Oct. 27 letter to Perry, Switzer, and Attorney General Greg Abbott: "[W]e ... share grave and growing concerns about the State's stubborn refusal to date to test all the evidence in the Skinner case. Executing Mr. Skinner without testing all the relevant evidence would suggest official indifference to the possibility of error in this case and needlessly undermine public confidence in Texas's criminal justice system." Eighty-five percent of Texans agree that prisoners should have access to DNA testing, says the letter, and in this particular case there is "no justifiable reason why Texas continues to waste taxpayer dollars in its decade-long fight to prevent scientific testing."

Read the complete letter here.