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.Since the Legislature passed SB 122 after and in many ways because of and as a rebuke to the Court of Criminal Appeals decisions relied upon to oppose DNA testing under the old statute, I don't understand why the Texas Attorney General is fighting testing so vigorously, any more than I understand why the DA in McLennan County would oppose DNA testing in the Lake Waco murders case. In Skinner's case, as Grits had written previously, "Whether the evidence exonerates him, implicates him, or is deemed inconclusive, [his] case has had a significant effect on jurisprudence surrounding DNA testing, setting new federal precedent and helping spur a new state law." Now it appears likely he'll be a beneficiary of that state statute.
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.
I have no way to judge the likely outcome. Fort Worth attorney Mike Ware, who previously ran Dallas DA Craig Watkins' Conviction Integrity Unit and is now in private practice, once told me that after their unit and my employers at the Innocence Project of Texas vetted cases for DNA testing among a cache of old rape kits discovered in Dallas, the numbers played out roughly 1/3 each in three categories: exculpatory, inculpatory, and inconclusive. Maybe Skinner's test will fall in one of the latter two categories and the AG attorneys will feel vindicated, but if DNA testing is exculpatory - particularly if it contradicts the prosecution's theory of the case or implicates someone else - those lawyers might wish down the line that they hadn't fought testing so hard. Ask John Bradley in Williamson County about that.