For the fourth time, the state of Texas is scheduled to execute death row inmate Hank Skinner for the 1993 murders of his live-in girlfriend and her two sons, potentially quashing his ability to request DNA testing under a new state law.
Gray County District Attorney Lynn Switzer asked a state district judge last month to grant an order setting an execution for Nov. 9, even as Skinner awaits a federal court ruling on whether prosecutors must turn over DNA evidence for testing that he says will prove his innocence. Skinner’s lawyers call the move a pressure tactic that makes it tougher for the court to adequately weigh the matter.
“No one's interests will be served by rushing to a decision under the pressure of a looming execution,” Rob Owen, one of Skinner’s lawyers and director of the University of Texas School of Law's Capital Punishment Clinic, said in a statement.
The execution date also means that Skinner’s lawyers must hurry to try to take advantage of a new state law that allows increased access to post-conviction DNA testing. In 2001, legislators passed a law allowing those who had already been convicted to ask for DNA testing. The original legislation allowed testing only in cases in which DNA tests were not conducted during the original trial because the technology was unavailable or for some other reason that was not the fault of the defendant. This year, lawmakers repealed those restrictions. Beginning Sept. 1, post-conviction testing will be available for DNA evidence not previously analyzed, and for DNA evidence that was tested but that can be re-examined with updated technology.
Switzer’s office directed calls to the Texas Attorney General’s Office. Lauri Saathoff, a spokeswoman for the attorney general, declined to respond to Skinner’s lawyers’ comments and said the execution warrant was sought “because Skinner has exhausted his appeals and habeas corpus petitions, and there are no outstanding stays of execution from any court.”
The 2001 post-conviction DNA testing law is at the heart of Skinner’s quest for DNA testing. He has always maintained that he did not kill Twila Busby and her sons, Randy Busby and Elwin Caler. Although he was at the house at the time of the murders, Skinner contends — and toxicology tests indicated — that he was so inebriated from a concoction of vodka and codeine that he was passed out on the couch in their small Pampa home, unable to physically overtake the three victims.
DNA evidence presented at his trial showed Skinner’s blood was at the scene, and an ex-girlfriend — who later recanted her testimony — told jurors that he confessed to her. The jury convicted him in 1995.
But not all the available DNA evidence was tested. A rape kit, biological material from Twila Busby's fingernails, sweat from a man’s jacket resembling one that another potential suspect often wore, a bloody towel and knives have never been tested. Skinner's original trial lawyers worried the results might be incriminating. But Skinner has asked the state to release the evidence now for testing.
Texas courts have repeatedly said no. Citing the 2001 law, they ruled that Skinner had his chance in 1995. They have also agreed with prosecutors who contend that more tests wouldn’t prove that Skinner was innocent.
But less than an hour before Skinner was scheduled for execution in 2010, the U.S. Supreme Court issued a stay. After a hearing, the high court sent the case back to the federal district court to decide whether Skinner is entitled to additional DNA testing. That court is set to decide in the coming months whether Texas courts have arbitrarily and unconstitutionally applied the state's 2001 post-conviction DNA testing law.
“It would be logical and sensible for the state to hold off setting another execution date until Skinner’s legal claims can all be heard in a reasonable fashion,” said Doug Robinson, one of Skinner’s lawyers. “It makes everything just so much more difficult, certainly for Skinner’s lawyers, and I would imagine for the federal courts."
Meanwhile, Robinson said, it also means that Skinner’s lawyers must quickly decide whether to file another request in state court for DNA testing based on the new post-conviction DNA testing law that takes effect next month. If lawyers file the request on Sept. 1, the day the law takes effect, it will give the courts only two months to issue a ruling before the execution date, practically lightning speed in death row litigation terms. “The two previous motions we filed took two to three years for the state courts to rule on,” Robinson said.
Which makes it very likely, Robinson said, that Skinner and his lawyers will be asking the courts to grant another stay of execution.