AG ceases opposition to post-conviction DNA testing in Skinner case

The Attorney General's decision to cease opposing post-conviction DNA testing in Hank Skinner's case may finally put to rest the prosecutorial hubris displayed in a handful of jurisdictions since the Legislature expanded access to testing last year. After it became clear at a May hearing that judges on the Court of Criminal Appeals were likely side with Mr. Skinner, the AG "did an abrupt about-face and ended its years of objection to DNA testing," said the Fort Worth Star-Telegram.

In cases like Skinner's, Kerry Max Cook's, and the Lake Waco murders, where McLennan County DA Abel Reyna has vigorously opposed DNA testing, some prosecutors seemingly could not wrap their head around the new law after it passed the Texas Lege last year (as SB 122 by Ellis). Now, when DNA evidence might be probative, prosecutors basically have lost most grounds for objection: There were too many instances - particularly in Dallas - where prosecutors objected for years and when testing was finally done it revealed new innocence cases. But quite a few prosecutors ignored the new statute and continued to object to testing.

The Skinner case, had the AG not changed course, was poised to settle the issue as a legal matter. Since they backed down before a decision, there's still no precedent formally interpreting the new law. But it's pretty clear the current CCA understood the implications of the change and were prepared to honor it. This debate is now over, even if DAs from Smith and McLennan County don't realize it yet.

Grits has no opinion on Skinner's likely innocence or guilt. As Judge Elsa Alcala said at that May hearing, the evidence is "not overwhelming; it's circumstantial," and DNA has sometimes proven men innocent when circumstantial evidence seemed overwhelming. You simply don't know for sure until you test the DNA, which was the whole point of the new statute in the first place.

RELATED: See, "The Legislature, post-conviction DNA testing, and the (slow) education of Texas prosecutors."

here: Shttp://www.star-telegram.com/2012/06/04/4007441/texas-ag-relents-on-death-row.html#storylink=cpy

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.

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?

Skinner case boosts chances for improving state DNA testing statute

I've not had time to give more than passing attention to Hank Skinner's much-remarked victory at the US Supreme Court, allowing federal civil rights lawsuits to seek DNA testing on top of Texas' Ch. 64 of the Code of Criminal Procedure, our DNA testing statute. But the decision (pdf) does make me think the chances of passage for state Sen. Rodney Ellis' SB 122 have improved as a result of the decision. The bill, which is part of his "innocence package," essentially removes a few already minimalist barriers to securing postconviction DNA testing where evidence was never tested and the results might prove innocence. If it passes, judges will no longer consider why the DNA wasn't tested in the first place, only if it exists, wasn't tested and potentially could prove innocence. (It also requires unidentified DNA profiles in the sample to be matched with CODIS,  the national database, which nine times out of ten would probably happen anyway.)

There were already strong arguments for the bill: If DNA exists and could be exculpatory, denying it due to procedural hurdles is unjust if it keeps an innocent person in prison, regardless of the state or victims' interests in "finality." But the Skinner case adds a much more practical argument: If DAs fight testing and a local judge denies it under Chapter 64, they could be subjecting the county to a federal civil rights suit! That ups the ante, giving SB 122 more "legs" because counties' and DAs' interests are now more firmly aligned with it; Skinner took away all incentive to fight DNA testing in state court on procedural grounds.

Innocence roundup

Here are several innocence-related stories I don't have time to discuss this a.m., but which merit Grits readers attention:

No compensation for Anthony Graves
The Comptroller refused compensation to Anthony Graves, who was exonerated 16 years after a capital murder conviction, because his case was overturned on direct appeal instead of through a habeas corpus writ based on actual innocence claims. The Comptroller's decision stems in part from the unique circumstances of the case: Most exonerations occur post-conviction,  but because this was a death penalty case the feds reviewed it on direct appeal. The 5th Circuit overturned Graves' conviction and special prosecutor Kelly Siegler declined to re-indict, declaring there was no evidence pointing to his guilt aside from testimony tainted by prosecutorial misconduct. As a result, there's no court ruling or pardon affirming "innocence," or at least that's the excuse the Comptroller gave for refusing to pay. (UPDATE: See a Houston Chronicle editorial decrying the Comptroller's decision and more detail from the Chron's Harvey Rice on the basis for denying Graves' claim.)

Texas DNA testing case at SCOTUS
The US Supreme Court will soon decide a Texas case (Hank Skinner) which may determine when federal law requires DNA testing in the fact of post-conviction innocence claims. The Washington Post this week published an in-depth preview. Texas has one of the stronger DNA testing statutes in the country, but access to testing still varies based on prosecutorial discretion. The evidence wasn't tested because the DA in Gray County fought it tooth and nail, even though the defense offered to pay for it. If Skinner's case had come out of Dallas, notes the Post, the evidence would likely have been tested long ago and the controversy put behind us. The lesson from Texas' decade-old DNA testing statute: When biological evidence exists in old cases and could be probative, there's really no downside to just testing it to find out the truth one way or the other.

Waiting game
Prosecutors and a district judge in Dallas already agreed Richard Miles was innocent of the 1994 murder for which he was convicted, a ruling which allowed him to be released on bail while the Court of Criminal Appeals considers his habeas corpus writ. That was in October 2009, though, and the Dallas News reports Miles is still waiting on final word in his case from the state's highest criminal court.

Tuesday Morning Roundup

Several items caught my attention this morning that may interest Grits readers:

• Via Stateline, "The deficit Texas didn't see coming."

• Sharon Keller feels "vindicated" over dismissed misconduct charges.

• A raid on a bathhouse in Dallas has gay activists upset. 

• Judge indicted in pissing match with outgoing Collin County DA. Five previous grand juries had declined to indict the judge, who the Commission on Judicial Conduct has suspended with pay pending the outcome of the case. The Collin County Observer rounds up the latest.

• The Texas Tribune has posted an interview with death penalty litigator Rob Owen from the UT Austin Capital Punishment Clinic after he argued the Hank Skinner case before the US Supreme Court.

• The Austin Statesman has coverage of the Court of Criminal Appeals decision to disallow testimony by forensic psychologist Richard Coons, a case discussed earlier on Grits here.

• Some north Texas towns are enacting redundant municipal statutes to hold parents accountable for underage drinking, even if they don't know about it.

• Tonight, the PBS news show Frontline will feature a story on the Todd Willingham case titled "Death by Fire." See "sneak previews" of the show here and here.

SCOTUS to hear TX DNA case next week

The US Supreme Cout next week will hear oral arguments in a Texas death penalty case where the defendant, Hank Skinner, claims innocence and seeks DNA testing. Previewing the case, SCOTUSBlog says "it is tempting to state what seems obvious: when a man’s life or death depends on it, and the evidence still exists, why not just test it?"

SCOTUS to review Hank Skinner case

Radley Balko lets us know that:

The Supreme Court has granted certiorari to Hank Skinner, a Texas death row inmate who is trying to get access to DNA evidence that he claims will clear his name.

The Court has already ruled that there is no constitutional right to post-conviction DNA testing, but Skinner’s claim is that he’s entitled to the testing under federal civil rights law.

Interestingly, it was Justice Scalia who first stayed Skinner’s execution in March. Scalia has written in a couple of opinions now that the U.S. Constitution does not prevent the government from executing an innocent person.

[Balko] wrote about Skinner’s case in February.

I have no opinion regarding Skinner's guilt or innocence; I simply haven't followed the case closely enough to say one way or the other. But if only to avoid a repeat of the Todd Willingham fiasco - where credible evidence that he was convicted based on flawed forensics wasn't seriously considered until after his execution - and to preserve the integrity of the system in the public eye, it's important the testing be done before Skinner executed.

That's as much in the interest of the pro-death penalty movement as it is Hank Skinner. Why risk an embarrassing, damaging "Oops" after the fact if it's possible to doublecheck potentially exonerating leads on the front end?

I'd have thought after the Willingham mess that Texas courts and the Governor might have learned this lesson, but they seem doomed to repeat history rather than learn from it. Very frustrating. With Nietzche's Zarathustra, one sometimes wonders, "Must one smash their ears before they learn to listen with their eyes?"

RELATED: See Michael Landauer's latest on the case from the Dallas News Death Penalty Blog.

Time to test Skinner DNA evidence

Karl Keys at Capital Defense Weekly sums up the news of the Supreme Court's stay in the Hank Skinner case aptly: "As always, Rob Owen rocks. My suggestion to the Texas AG’s office, test the material now & moot the issue if Mr. Owen & crew are wrong."

That's exactly right. If SCOTUS was going to let Skinner be executed without the evidence being tested they'd have let it happen last night. This matter could be put to rest in 30 days time one way or another.

It's time to test the evidence - past time, really. Do it to save face for the state of Texas, if nothing else. Don't further encourage the impression that Texas judges and prosecutors are biased, bloodthirsty, and can't manage capital cases without killing an innocent person. In D.C. they're holding panel discussions on the topic, why give fodder to those stereotypes?

A footnote: Governor Perry failed two important tests yesterday by failing to commute Skinner's sentence and forcing the Supreme Court to manage his business:

First, after he signed Timothy Cole's posthumous pardon last week, the open question remained, "Has the Governor learned anything from this experience about making sure innocence claims are fully vetted?" In the Skinner case, we got a quick answer: "No way." The attitudes that allowed innocent people to be convicted and potentially executed on his watch are still firmly entrenched.

Second, for a Governor so full of himself when he champions "states rights" and the Tenth Amendment, in this case he ignored the adage that with rights come responsibilities. Texas should be handling its own business on the Hank Skinner case, SCOTUS shouldn't have to intervene over and over because neither the Governor nor the courts have the courage to do the right thing. Governor Perry is calling for expanded state power but simultaneously demonstrating that he can't be trusted to use it wisely - that even matters of life and death will be measured according to their political calculus as opposed to the interests of justice.

If you don't want federal courts running your business, Governor Perry, then act more responsibly and it won't so often be necessary.

RELATED: Mark Bennett has a terrific breakdown of the procedural details of the writ under consideration at SCOTUS.

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.

Casting light on Texas clemency decisions

I've not followed the Hank Skinner case on Grits; the blow-by-blow has been covered well elsewhere and I've had nothing in particular to add to the conversation. (Sam Millsap's recent column in the Houston Chronicle largely reflects my views.) Certainly I think any potentially exonerating forensic tests should be performed before his execution date, currently scheduled for March 24; you don't want such inconvenient truths coming out after the fact.

But as the clock ticks and the lawyers wait on the U.S. Supreme Court to decide whether DNA evidence must be tested, Skinner's case is casting light on some particularly dark corners of the justice system, most recently the clemency process, which has essentially withered and atrophied from disuse. In an article at the Texas Tribune titled "The Secret Pardon," Brandi Grissom gives voice to critiques of enigmatic and abstruse clemency practices at the Texas Board of Pardons and Parole:

The seven-member board makes life-or-death decisions, recommending to the governor whether an execution should be delayed, called off or carried out. Yet it’s one of the least transparent agencies in state government, making it all but impossible for [Skinner's attorney Rob] Owen, or any other member of the public, to decipher how or why it makes decisions. The board doesn't have to hold public meetings on clemency cases like [Hank] Skinner's. It's not required to give any reasons for its recommendations. Most times, the seven members simply fax in their votes. If the vote isn't unanimous, clemency is denied. What’s more, there are no guidelines in statute or in the board’s rules that outline a basis for decision-making. And nearly all the documents the board uses to make its decisions are kept secret under state law — even after an inmate is executed. “To the extent we assume that the clemency review process is a meaningful safeguard for cases like Hank’s, where there might be doubt about guilt … our trust is misplaced,” says Owen, co-director of the University of Texas at Austin School of Law's Capital Punishment Clinic.

Criminal justice advocates and some lawmakers have called for reform of the Texas clemency process for years, calling the current system opaque and arbitrary. Especially in the wake of high-profile cases like that of Cameron Todd Willingham, who was executed in 2004 despite serious concern about his guilt in an arson that killed his daughters; and of Tim Cole, who was exonerated of a rape conviction after he died of an asthma attack in prison, proponents of reform say the time for change is now — before Texas puts an innocent person to death. Even Gov. Rick Perry has supported past efforts to require the board to meet in public in capital clemency cases. Rissie Owens, chairwoman of the Board of Pardons and Paroles, and a member of the Huntsville school board, declined an interview for this story and did not answer written questions about calls for reform. She sent an e-mailed response outlining the board's current rules.

According to a 2005 report (pdf) by Texas Appleseed and the Innocence Network, says Grissom:

Texas is the only death penalty state that does not require the board to meet for clemency decisions, according to the report. Instead, the board’s practice is to send materials to board members across the state who make full-time salaries ranging from about $95,000 to $115,000 for chairwoman Owens. They review the information and then fax in their votes, a process the Fifth Circuit Court of Appeals upheld in 1999 in a lawsuit in which a death-row inmate unsuccessfully sued the state, claiming the clemency process was unconstitutional.

Of course, given the fact that Rick Perry has rejected clemency in most cases recommended by the Board of Pardons and Paroles, whatever criticisms one may have of their policies, they're being a lot more generous than he is!

Related Grits posts:

• Public tired of Willie Horton? Whither 21st century clemency?
  
• Perry's Christmastime pardons an odd mix, short list
  
• Clemency in the Rick Perry era
• "The quality of mercy is not strain'd," particularly when it doesn't have to do any heavy lifting