The Austin Chronicle

Does DNA Testing Prove Skinner's Guilt?

By Jordan Smith, February 6, 2014, 10:00am, Newsdesk

Had the state of Texas actually safeguarded and properly preserved evidence collected as part of the investigation into the 1993 slaying in Pampa of Twila Busby and her two grown sons, Elwin and Randy, it is unlikely that questions would linger about who is responsible for the brutal and bloody crime.

But the state lost a key piece of evidence in the case – a sweat and blood-stained windbreaker found near Busby's body in the home she shared with her two sons and her boyfriend, Hank Skinner. And it failed also to properly package and store additional evidence, making DNA testing on an array of items impossible, according to Skinner's defense team.

Skinner was sentenced to die for the New Year's Eve 1993 triple murder. He has maintained his innocence and said that he was passed out on a combination of booze and pills at the time of the crime, awoke to find that the family had been slaughtered and cut his hand on a shard of glass before fleeing the home.

Had the state consented more than a decade ago to DNA testing of a number of items of evidence in the case – including the jacket – there is a chance the items would have been in better shape, or not disappeared, Skinner's lawyers have argued. But the state did not agree to test any of the items until 2012 – after its arguments against allowing Skinner access to DNA testing proved unimpressive before the Court of Criminal Appeals. (In part the state argued that to allow Skinner access to DNA testing now, well after his conviction, would be to incentivize other defendants facing the death penalty to wait until after they're convicted and sent to death row before trying to prove their innocence.)

Several rounds of testing have now happened and in a two-day hearing this week in Gray County, lawyers for the state and for Skinner argued the significance of the results – which, of course, depends on whom you ask.

Since the first round of testing was completed in late 2012, the state has insisted that the results bolster its case against Skinner. His DNA was found on a knife the state believes was used in the crime, as well as on doorknobs, walls, a comforter, and a tennis shoe. The results "confirm" that Skinner is guilty, the state argues – a position it maintained during this week's hearing.

Skinner's defense has countered that there is nothing definitive to link Skinner to the crime – and the absence of evidence in key places is telling, argues defense attorney Rob Owen with the Bluhm Legal Clinic at Northwestern University School of Law. Skinner's DNA is alone on a stain near where Randy Busby was stabbed; had Skinner stabbed the 20-year-old, as the state alleges, the DNA found on his comforter should have revealed a mixture of DNA evidence. The same logic applies to DNA found on doorknobs and other areas where only Skinner's DNA was recovered, his lawyers argue. Additionally, DNA testing has revealed the profile of an unknown person mixed with Busby's on a bloody dish towel hidden in a plastic bag at the crime scene.

Also significant to the defense are several hairs found clutched in Busby's hand. Those hairs do not match Skinner. DNA testing on the hairs revealed the profile of an unknown person with a maternal relationship to Busby, but a visual analysis of the hairs found them to be dissimilar to hair from Busby or her two sons.

Skinner's defense team believes the hair belongs to Busby's uncle, Robert Donnell, who they say is likely the real murderer. Donnell was seen "stalking" Busby at a party the night she was murdered and he left the party shortly after she did. He has since died.

Indeed, a witness was set to testify this week that the windbreaker lost by the state – of which only photos remain – was in fact Donnell's. Owen also sought to introduce testimony about how that windbreaker, visibly spattered with blood and stained with sweat, could have been tested for DNA. The state fought inclusion of the testimony and Judge Steven Emmert agreed it would not be considered. In a statement, Owen said he disagreed with that ruling on evidence that is "at the center of the case," he said. "It shows why a jury that heard all the evidence, including DNA results, would have harbored a reasonable doubt about Mr. Skinner's guilt."

In 2012, the Chronicle tried to track, without success, the location of the missing jacket; it had been missing for years, we were told. Only recently has the Legislature amended the law to require for the long-term preservation of any evidence that may contain biological evidence. That was not the case in 1993, at the time of the murders, says John Vasquez, a veteran police department evidence and property control manager who now runs his own evidence-control consulting firm. Given the state of Texas law at that time, the fact that DNA was only beginning to be used in criminal cases, and the lack of standardized procedures for collection and storage of evidence, Vasquez believes that, "unfortunately," similar problems from other "cases in that era will not be uncommon," he wrote in an email.

At this juncture, the question before the court is not whether Skinner is in fact innocent, but whether it is reasonably likely he would have been acquitted if the DNA testing had been completed and the results provided to his jury.

Skinner attorney Owen says he doesn't believe that the state should be allowed to prevail based on its inability to maintain control of evidence crucial to the case. "The doubts about...Skinner's guilt are far too great to allow his execution to proceed, particularly where the State's utter failure to safeguard key pieces of evidence may make it impossible to resolve those questions conclusively," Owen and attorney Douglas Robinson, of Skadden, Arps, Slate, Meagher & Flom, said in a press statement.

But the state remains confident that it has the best evidence and the right man behind bars. "It is clear from the evidence that additional DNA testing further proves Skinner's guilt," Lauren Bean, deputy communications director for Texas Attorney General Greg Abbott, wrote in an emailed statement. His DNA was all over the home and was present on "all 8 samples" taken from a knife found at the scene. "No amount of manufactured doubt from his lawyers can change evidence that confirms...Skinner killed Twila Busby and her two sons."

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