Sensitive to dozens of DNA exonerations in recent years, judges on the nine-member Texas Court of Criminal Appeals today grilled the Texas solicitor general about what harm could be done by granting death row inmate Hank Skinner's decade-old request for biological analysis of crime scene evidence.
"You really ought to be absolutely sure before you strap a person down and kill him," Judge Michael Keasler said.
Oral arguments in the hearing wrapped up today. It could take weeks or months for the court to render a decision on whether to allow DNA testing in the case.
Skinner, now 50, was convicted in 1995 of the strangulation and beating death of his girlfriend Twila Busby and the stabbing deaths of her two adult sons on New Year’s Eve 1993 in Pampa. Skinner maintains he is innocent and was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine.
For more than a decade, Skinner has asked the courts to allow testing on crime scene evidence that was not analyzed at his original trial, including a rape kit, biological material from Busby’s fingernails, sweat and hair from a man’s jacket, a bloody towel and knives. His lawyer, Rob Owen, co-director of the University of Texas at Austin’s Capital Punishment Clinic, told the court that if DNA testing on all the evidence points to an individual who is not Skinner, then it could create reasonable doubt about his client's guilt.
"It changes the picture," Owen said. "Having the DNA evidence makes the jurors look at other pieces of evidence differently, because I think jurors are inclined to accept DNA evidence as reliable."
Texas Solicitor General Jonathan Mitchell told the court that there is such "overwhelming evidence" of Skinner's "actual guilt" that DNA testing could not undermine the conviction. Mitchell argued that Skinner had his chance to test the evidence at his trial, but he chose not to. Skinner is now using the fight for DNA analysis as a frivolous attempt to delay his inevitable execution, Mitchell added. Allowing Skinner testing at this late point in the process, Mitchell said, would set a dangerously expensive precedent for guilty inmates. In future cases, he said, prosecutors would feel obligated to test every shred of evidence to prevent a guilty defendant from delaying his sentence by requesting additional DNA results.
"Prosecutors will have to test everything, no matter what the cost," Mitchell told the court.
"Prosecutors should be testing everything anyway," Keasler said.
The Court of Criminal Appeals has previously denied Skinner's requests, citing restrictions in the state's 2001 post-conviction DNA testing law that have since been repealed. Most recently, during the 2011 legislative session, lawmakers repealed part of the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the fault of the defendant.
The court of appeals stayed Skinner's Nov. 9 execution date so they could determine how the change to the law should apply to his case.
The tough questions for the state today came as something of a surprise from the court, which typically favors prosecutors.
Mitchell told the court that legislators did not intend to allow defendants like Skinner to reject testing at their original trial but then use it later to delay their executions.
In Skinner's case, his trial lawyers decided not to seek testing on all of the evidence because they feared it would further implicate him in the crime. And state Sen. Rodney Ellis, D-Houston, who authored the bill that repealed the fault provision, has explicitly said that he aimed to allow testing in cases like Skinner's.
Judge Keasler said Mitchell's argument that legislators didn't intend to allow testing in Skinner's case seemed illogical.
"It at least signals to anybody with any sense that when the Legislature does away with the fault provision, they're doing just that, and it seems particularly applicable here," Keasler said.
Judge Elsa Alcala countered Mitchell's argument that the evidence against Skinner was "overwhelming." Mitchell pointed to the fact that Skinner — who never disputed that he was in the house at the time of the murders — had blood from the victims on his clothing and his bloody handprints were at the house and to statements he made to police that intimated he might have done it.
The case, Alcala said, "is not overwhelming, it's circumstantial." She gave little credit to a statement that Skinner gave shortly after the murders in which he told police he had fought with Busby and might have killed her. The statement was not used in Skinner's trial and the prosecutor has said he knew it was inadmissible. If there were DNA linked to another person at the crime scene, Alcala said, a jury might give more credence to Skinner's contention that someone else committed the murders while Skinner was passed out on the couch.
"DNA has exonerated people where there has been confessions to police officers," Alcala said. "The fact there is a confession to a police is not the end all."
Alcala also swatted down Mitchell's argument that Skinner was frivolously delaying his execution with repeated requests for DNA testing.
"If you had tested this upon their first DNA motion 10 years ago, we would have had results 10 years ago," Alcala said. "Under your theory, they would have showed Skinner's guilt, and he would have been executed nine years ago."
Judge Cheryl Johnson challenged Mitchell's assertion that Skinner had deliberately chosen to forgo DNA testing at trial so that he could delay his execution by seeking the analysis later. Texas did not adopt its post-conviction DNA law until six years after Skinner's conviction.
Referring to recent "embarrassing incidents" in which DNA has led to the exonerations of people who spent decades in prison — there have been at least 47 DNA exonerations in Texas, including two Dallas men who were wrongfully convicted of rape and freed Tuesday — Judge Cathy Cochran questioned the state's continued resistance to Skinner's request.
"Why not just lay this all to rest by doing the DNA quickly after low these 12 years?" she asked. "Wouldn’t we be better off saying, 'Shew! Thank goodness there wasn’t an issue here at all,' rather than leaving the issue open to concern by everybody?"
Owen said that if the court allowed testing, it would take about six to 12 weeks to complete and that Skinner would pay for it. In an interview outside the court, Owen said he saw hopeful signs for his client during today’s hearing.
"The point the judges made was that the truth is stranger than fiction sometimes," Owen said. "You don’t ever know until you do the testing."