Post-conviction appeal may be allowable under new DNA testing statute

A pair of stories at the Texas Tribune about post-conviction appeals deserve Grits readers attention. First, reports Brandi Grissom, Hank Skinner may benefit from a new, little discussed statute passed last spring by state Sen. Rodney Ellis and state Rep. Pete Gallego, SB 122, which removed certain grounds for prosecutorial objections to post-conviction DNA testing. Sounds technical, and it is, but it means that when potentially exculpatory evidence exists, prosecutors now have few means short of destroying it to prevent the evidence from being tested.

Skinner using SB 122 is ironic in one respect. Its passage was made easier because of Skinner's victory at the US Supreme Court, which ruled this spring that Skinner could sue under federal civil rights statutes if the state denied him DNA testing. So the tort-reform minded legislators figured, if we let prosecutors delay testing we'll be inviting newly approved federal litigation under the Skinner ruling. The law was passed, then, in part, because Skinner won the right to sue in federal court for DNA testing, but in practice it will likely be the state statute that gets the evidence finally tested. Whether the evidence exonerates him, implicates him, or is deemed inconclusive, Skinner's case has had a significant effect on jurisprudence surrounding DNA testing, setting new federal precedent and helping spur a new state law.

Also, the case of Duane Buck, whose execution is scheduled for Thursday September 15, is a mess of Attorney General Greg Abbott's creation. Here's the background, via Trib reporter Lara Lapin:

Buck was convicted in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. During his 1997 trial, psychologist Walter Quijano testified that because Buck was black, he was more likely to be a violent threat in the future. Quijano gave similar testimony in six other death row cases.

In 2000, then-Attorney General John Cornyn admitted that all of the cases, including Buck’s, were tainted by constitutional error because the government relied on race as a consideration for the death sentence.

Cornyn said it was “inappropriate to allow race to be considered as a factor in our criminal justice system,” and promised to “continue to do everything [he could] to assure Texans of [the Office of the Attorney General’s] commitment to an equitable criminal system,” according to court documents.

In each of the other cases in which Quijano testified, the petitioner was granted a new trial. All but one, who has been executed, remain on death row. Buck’s is the only case that has not been retried.

I don't know why Abbott had his office reverse course, but as they say in political circles, the optics are bad. What's the harm from giving the guy a re-sentencing hearing instead of defending an execution based on this hot-button argument about race that now-Senator Cornyn, Abbott's predecessor as AG and former colleague on the Texas Supreme Court, could not bring himself to endorse? It's like the state is looking for reasons to pick fights with the federal courts. Hmmm, I wonder where I might have gotten that idea?