Wednesday, March 24, 2010

Execution looms with DNA evidence untested: Will SCOTUS, Governor intervene on Hank Skinner?

Today is the deadline. One of three things will happen today in the Hank Skinner case: He will be executed later tonight, the US Supreme Court will stay his case and order DNA testing on potentially exculpatory evidence, or Governor Rick Perry will commute the sentence for 30 days to allow the evidence to be tested. Which will it be? Your guess is as good as mine, so please record yours in the comments.

For my part, I think Sam Millsap is right: DNA testing only works if the justice system chooses to use it. After the Governor signed Timothy Cole's posthumous pardon last week, after all the DNA exonerations in Dallas and around the state, much less after witnessing the imbroglio over post-execution innocence claims in the Todd Willingham case, I think it's high time Texas stopped fooling around with these cases (as though they were engaged in a juvenile game of political chicken with the capital defense bar) and start to make sure, at least, that the state is killing the right guy before putting him down.

In addition, I'd like to see Texas clean up its own mess, which in this case would mean Governor Perry temporarily commuting the sentence long enough for the evidence to be tested. Do I think that's likely after the Board of Pardons and Paroles recommended against it? Not really. It would be a surprise, albeit a welcome one, if the Governor did so.

MORE: Excellent post from Mark Bennett at Defending People: "Nope, No Balm in Gilead. Sorry."

UPDATE: SCOTUS stayed the execution, for now. What's next? According to Lyle Denniston at SCOTUSBlog:
Lawyers on both sides have completed all of the filings in the case on that issue, so the Court is expected to schedule it for Conference within a matter of weeks. In the meantime, the postponement granted Wednesday will stay in effect until the petition is acted upon and, if granted, until it is decided. If review is denied, the postponement will expire automatically and the state could then schedule execution anew. If review is granted, a ruling would not be expected until next Term, starting next October.


doran said...

Maybe the Guv will hear an audible voice of God in his head, conveying instructions.

Anonymous said...

My guess is that Hank will get the needle tonight.

Governor Perry should grant a 30 day reprieve, but, like Grits, I will be surprised if he does. It would be the morally correct thing to do. And while the good Gov. has proven himself to be an astute politician, IMO, it would be the politically correct thing to do. If Hank does get the needle tonight, a cloud of reasonable doubt will hang over his execution, haunting pro-capital punishment advocates for decades to come.

Rev. Charles in Tulia

Steve said...

Governor Perry and the prosecution have nothing to lose by having the DNA tested. If it exonerates Skinner, they have saved an innocent life. If it fails to exonerate him, they can say "Nyeh, nyeh, nyeh, we told you so." News reports have been mentioning that there was another case in which the DNA evidence confirmed the guilt of a death row appellant: Ricky McGinn.

The bottom line is they have nothing to lose and possibly a life to gain. It should be a no-brainer decision. Oops. I guess that means the governor will refuse the DNA test and he will be executed.

Don said...

I agree with Steve and Charles in Tulia, as well as Grits. I don't really understand the downside that the governor and prosecutors seem to have with testing possibly exculpatory evidence. Well, I guess I do understand the prosecutors. If they get too many of their convictions overturned, it would be damaging politically. But what's the governors stake in executing a potentially innocent person? Even with Texas hang "em high mentality, most Texans really, truly want to see justice, not just "getting" someone. Surely families of victims want to be absolutely certain the right person is punished.
So it must be the Capital Punishment argument itself. They are so afraid that with recent developments in DNA testing, (Cole, et al) that the public will come to realize that we have probably already put innocent people to death, and if that happens, the Death Penalty will be on Death Row. They can't afford to let that happen after all their fervent rantings in support of it.

Michael said...

Ditto to the previous commenters. There's a fourth possibility -- that a frog could jump out of my butt and sing Dixie -- that is more likely than Perry commuting the sentence.

And I agree with your remarks about Mark Bennett's blog post. Well done, Mark!

Charlie O said...

Grits, Were you aware of the Forensics Panel at Georgetown Law last night in DC that discussed the Willingham case? Balko was the moderator.

Anonymous said...

My understanding is that Skinner's lawyer had an opportunity to request that additional DNA testing be done pretrial and chose not to do so out of fear that it would only reveal more incriminating evidence. If this is true, he has no justification for seeking additional testing at this time and should be executed. The misinformation promoted by capital defense counsel in these 11th hour claims to avoid execution--which is gobbled up hook, line and sinker by an all too sympathetic liberal media--has become almost comical. Newsflash: just because someone on death row claims he's innocent doesn't mean that he really is. If anything, one should be even more skeptical of such claims because these individuals have the ultimate motivation to lie and game the system. I'm reminded of a saying an old criminal justice professor of mine used to say: "Prisons are full of innocent people; if you don't believe it just ask them."

sunray's wench said...

Was there anything stopping the prosecution team from doing the DNA testing as soon as the evidence was discovered, just so that a last minute appeal would not be necessary on those grounds? Surely if you are convinced of someone's guilt and there is a way to prove that you are right, you should pursue every avenue to make your claim as concrete as possible?

I'm not sure that anyone here is saying that Hank Skinner is innocent. But the consensus appears to be that people want to be as sure as they possibly can be that if he dies tonight, there will be no more posthumous pardons.

Texas Lawyer said...

Anon@ 1:42:
"If this is true, he has no justification for seeking additional testing at this time and should be executed."

First: there are serious worries about that trial attorney. Probable conflict of interest, lax investigation of Donnell at the time of the crime. Skinner supporters say he actually asked his attorney to request the testing in 1994, but he didn't. I don't know that anyone denies that fact, so what is the "misinformation promoted by
capital defense counsel"?

Second, post-judgment testing, expected to confirm Skinner's guilt, actually excluded him as a contributor to hairs found clutched in the victim's hand (the DA had previously declared those hairs belong to the murderer). If subsequent evidence corroborates a claim of innocence, are you still willing to rely on your procedural default argument above?

Third: no one says we shouldn't be "skeptical" of this claim of innocence. No one thinks we should "swallow" anything. Reasonable and decent people think we should seek scientific confirmation when it's available.

Fourth: even if the procedural default underlying the CCA's opinion is a sufficient legal basis to deny further testing - - politically speaking, why not silence the critics by ordering the tests? What is the negative?

Anonymous said...

Anon 1:42, your procedural argument substantiates the claim that process trumps justice and truth. Sorry state of affairs.

Rev. Charles Tulia

Anonymous said...

Just heard SCOTUS has granted reprieve to allow dna testing. Governor will likely continue his anti-Washington stance and blast SCOTUS, but privately he is no doubt relieved as this takes the onus off him however the testing may turn out.

Rev. Charles in Tulia

doran said...

Darn!! I was hoping for a voice from god to the Guv.

Mark # 1 said...

Okay, anon 1:42, so what? The issue is simply innocence. Though a good "killin" may make you feel better about yourself and the "control" you seem to desire over "those people," the government represents all of us. I am not conceptually opposed to the death penalty--were we sure we had the right guy for the right offense. If the DNA shows him to not be culpable, wouldn't the sense of fairness that all(?) humans feel for other engender relief in you that we didn't kill the wrong guy? And if the DNA shows him guilty, you can be smug in your satisfaction that another one of "those people" have been kilt--all legal-like.

Jack said...

Who cares about all of it. Even if it is a delay tactic, the fact remains that DNA testing WILL prove guilt or even innocence regardless. I believe DNA evidence should be allowed to prove it and seal this one in stone. What's another 30 days really? Prove it and have peace of mind. I'm all for the death penalty... but why not allow DNA testing and give it 30 more days?

Far Infrared Sauna Detoxification

Best Far Infrared Saunas

Don said...

Don't know why you people continue to insist on talking reason to whoever anon: 1:42 is. The answer is Yes, even if Skinner is proven innocent by the DNA, people like 1:42 will still think he should have been killed because of the technicalities in the law. Charles, hard as is for reasonable people to get their head around, there are people who truly believe that process does trump justice, and style does trump substance. And you are correct. It IS a sorry state of affairs.

Michael said...

I agree with Don. I was especially taken aback by Texas Lawyer's post -- he used facts and well-reasoned arguments. That was a low blow.

Don said...

Yeah, Texas Lawyer. You gotta stop that reasoning crap. It makes some people feel like they should, I don't know, THINK or something. It's offensive.