Tuesday, October 25, 2011

Why does Texas AG continue to fight DNA testing in Hank Skinner case?

In the Hank Skinner capital murder case, a state court will soon interpret for the first time a new Texas statute passed last spring (SB 122 by Rodney Ellis) which removed most grounds for prosecutorial objections to post-conviction DNA testing when the results might be probative. Reports Brandi Grissom the Texas Tribune:
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.
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.

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.


Lee said...

Scott, John Bradley will pull a monkey from his rectum prior to contritely rectifying his transgressions or conceding error.

sunray's wench said...

"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."

Until they test it, they cannot be sure. They go against the CCA rulings when it suits them.

Anonymous said...

From what I've seen, the AGs office has the same attitude that some prosecutors have: Protect the system at all costs. It makes absolutely no sense for anyone to oppose DNA testing. Its simply more information. You are free to fight over what it means, but why do we want less information when we can have more. The only answer I can think of is that some feel it necessary to keep flaws in the system from being exposed, no matter what the costs.

Justice4Hank said...

Please sign & share the petition 'In the Interest of Justice, Grant DNA Testing to Hank Skinner' at http://www.change.org/petitions/in-the-interest-of-justice-grant-dna-testing-to-hank-skinner and activate your Texan and US networks! THANK YOU!

Petra de Jong said...

I am glad even YOU don't get this one, 'cause it has me completely baffled. No one in their right mind would oppose DNA testing in such a case, let alone fight against it like this. What if he's executed and it turns out that the evidence IS exculpatory? I would not be able to live with myself had I been the one to oppose testing. But I guess there's a reason I did not go into politics.

cat box chocolate said...

It should not be difficult for any reasonably intelligent person to understand why the government doesn't want to test stuff that was available but not tested due to the defendant's trial strategy.

If we always granted stays of execution to test evidence in these circumstances then DP defendants would always choose to leave some items untested so they could be guaranteed additional stays of execution.

Also, where does the testing end? Two of the Skinner victims were stabbed, the other bludgeoned to death. The house was a bloody mess. Must each drop of dried blood be tested separately? Should Skinner be able to ask for testing of the knife this year and then, on his next execution date ask for testing of the vaginal swab, and then on the third date ask for testing of the other knife, and then on the fourth test the carpet, and then on the fifth date the first victim's shirt and so on indefinitely? No matter how many tests are done there will always be some crybaby going to the media saying "but if we just do this one additional test that will exonerate him"

This sort of post-conviction testing is open to all inmates, not just those on death row. If it is used to its logical extreme it will undermine the judicial system and waste a fortune that could be better spent sniffing glue.

It isn't hard to imagine a writ where the convicted man claims that his trial attorney's insistence upon testing all the evidence merely served to eliminate reasonable doubt, increase the severity of punishment and foreclose future appellate remedies.

Petra de Jong said...

@cat box chocolate

There is a LIFE at stake here.

And who in their right mind would leave possibly exculpatory evidence untested for a stay of execution in the future (at a point when one doesn't even know whether one will get the DP)?

Sorry, but no, you are not making any sense.

cat box chocolate said...


A triple homicide with two stabbings and a bludgeoning death; just think about the mess that makes. There will DNA splattered everywhere representing at least the 3 victims and somewhere maybe a little from the killer. The victims may well have each other's DNA on their clothing and the various blood will be intermingled.

If blood on the top-front of a shirt was tested do we still have post-conviction testing for the blood on the left sleeve and then next year we have to test the bottom-front and right sleeve? We're talking about a splatterhouse where each piece of evidence could logically be subdivided into its individual drops.

Who would leave potentially exculpatory evidence untested? Are you even familiar with the Skinner case? It was a defense strategy IN THIS CASE to leave potentially exculpatory evidence untested on the theory that, if it were tested, it would be more evidence of guilt. If the evidence is ever retested we'll see if this was the correct decision but it is a valid defense strategy and if post-conviction retesting is grounds for a stay that will further increase the use of this strategy. So, in an ironic twist for the anti-death penalty activists, promoting this strategy may marginally increase the chance that an innocent person will be executed.

When considering how much more of our society's resources to spend on Mr. Skinner (and the costs that doing so in this case would imply for other cases) we should remember that it was his testimony that he was asleep in the same room where these three people were killed but was not awakened by the murders. We should keep in mind that he went to a neighbor's house to hide and told the neighbor not to call the police. In short, we should consider the likelihood that new DNA tests will contract the other evidence, including the DNA tests that found the victim's blood on Skinner's clothes.

Petra de Jong said...

If the evidence incriminates him "nothing is lost", if it exonerates him but we don't test it, all is lost. The choice still seems pretty obvious to me. But if you're worried about wasting money, you should consider abolishing the DP altogether. :P How much does a DNA test cost anyway? A few hundred? I'll pay for it if the State of Texas refuses to. But the resistance of the AG has nothing to do with money of course.

Chris Halkides said...

cat box chocolate,

You wrote, "A triple homicide with two stabbings and a bludgeoning death; just think about the mess that makes." I agree, yet Radley Balko described the spots on Mr. Skinner's clothing as small. How can we square those two facts?

Any claim to the effect that Skinner or his attorney did not test the items in question is misdirection. The investigators should have tested it as a matter of good forensic science. Period. End of story.