Following a hearing today in federal court in Amarillo, a lawyer for death row inmate Hank Skinner said it will likely be up to the state courts to decide a decade-long fight over DNA testing in his case. Skinner is scheduled to be executed Nov. 9.
Skinner was convicted in 1995 of killing his live-in girlfriend and her two sons in Pampa. He has maintained his innocence from the start, arguing that he was too inebriated from a mixture of vodka and codeine to overpower the three victims. He argues the DNA testing he seeks could show that another man was the killer.
Based on the federal judge's comments today, Skinner's lawyer, Rob Owen, director of the University of Texas School of Law's Capital Punishment Clinic, said the focus of the controversy will now likely shift to the state courts to apply a newly adopted post-conviction DNA testing law.
DNA evidence presented at Skinner's original trial showed his blood was at the scene, and an ex-girlfriend — who later recanted her testimony — told jurors that he confessed to her. But not all the available DNA evidence was tested. Among the untested items were a rape kit, biological material from the victim's fingernails, sweat from a man’s jacket resembling one that another potential suspect often wore, a bloody towel and knives. Skinner's original trial lawyers worried the results might be incriminating.
For years, Skinner has sought DNA testing on the additional items, but the state has refused, citing restrictions in Texas' 2001 post-conviction DNA testing law. Last year, less than an hour before he was to be executed, the U.S. Supreme Court granted a stay. After a subsequent hearing, the high court sent the case back to the federal district court to decide whether Skinner's civil rights were being violated by the state's application of the 2001 DNA law in restricting the DNA testing Skinner requested.
That was the question before the federal court in Amarillo today. State lawyers argued that Skinner had his chance at trial to have all the DNA testing done, but he forfeited that opportunity and is now trying to game the legal system to stall his demise. "If Skinner is allowed to test this DNA evidence, then every guilty criminal defendant will want to forgo DNA testing at trial and then use the untested DNA evidence as a post-conviction litigation tool to endlessly delay or hinder implementation of the sentence," state lawyers wrote in a brief to the court.
But the primary question the federal court had to answer about whether Texas' DNA testing law violated Skinner's civil rights faced a major change during the legislative session this year.
Lawmakers passed a measure that expanded access to DNA testing and eliminated the limits that prosecutors have cited in their objections to Skinner's requests. State Sen. Rodney Ellis, D-Houston, who helped write the bill, has said that Skinner's case is one the law was designed to affect.
Last month, Skinner's lawyers filed a request in Gray County District Court for DNA testing under the new law. They are now awaiting a decision on that request.
"The State conceded in federal court today that the legislature intended that change in the law to reach Mr. Skinner," Owen said in an emailed statement. "The State should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case. At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."
The Texas Attorney General's office, which is representing the state, today filed its objection to Skinner's request in state court for DNA testing. The state's lawyers argued that the Texas Court of Criminal Appeals has already twice denied Skinner's pleas for additional testing and that even if additional testing were done it would not prove Skinner's innocence. And they take Skinner to task for not claiming in court proceedings that he is "actually innocent." "If Skinner is indeed actually innocent of the murders, then he has a responsibility to say so in these court proceedings," they wrote.
In an affidavit he signed on Aug. 31, Skinner declared that he is "actually, factually and totally, legally and any other definition, innocent of this crime!"